Law of the Sea Convention

Dr. Shailendra Kumar

 International law is comprised of treaties and
customary international law. Customary international
law is established through the actions that States take
out of a sense of legal obligation. International law
changes through changing treaty regimes, as well as
through new and different legal norms that States
assume based on what they deem to be the law
governing emerging issues. Customary international
law, and in recent years, treaty law, have played a
central and continuing role in the evolution of the law
of the sea
 International custom changes over time, it is still binding and
recognized as law around the world.
 Not everything will be overtly agreed to by a State, however,
“a customary rule is observed, not because it has been
consented to, but because it is believed to be binding…its
binding force does not depend…on the approval of the
individual or the State to which it is addressed.”
 Customary international law is determined by looking at two
things: state practice and opinio juris.
 The International Court of Justice has stated that “[n]ot only
must the acts concerned amount to settled practice, but they
must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it.”
 Traditionally, a particular practice of States does not need
to be universally followed by States to qualify as custom.
 It needs merely to be generally and consistently practiced
by a representative group of States capable of participating
in the practice.
 State practice is shown by the actions taken by States. The
reasoning behind a State’s actions is also considered so as
to eliminate any accidental State practice, and only focus
on what States mean to do. Much of the Law of the Sea
Convention (LOSC) reflects the practices of States before
the treaty was made.
History of the Law of the Sea
 The law of the sea is simultaneously one of the oldest and one
of the newest bodies of international law. From the time the
seas began to be used for the conduct of commerce and war,
politicians, merchants, and scholars have debated who could
use the sea and who could control it.
 Freedom of the seas has taken many forms over the centuries.
From the 17th century, a State’s rights and jurisdiction on the
ocean were limited to a specific belt of water extending from
the coastlines
 For many years, a country’s territorial waters extended as far as
a shore battery could fire, and all waters beyond this were
considered international waters (free seas, or mare liberum).
 As described by Hugo Grotius, the father of modern
international law, the seas “were free to all nations but
belonged to none of them.”
 The tension between “the free sea” and “the closed sea” waxed
and waned for centuries, generally with the powerful arguing
that the sea was free to all, and the smaller States arguing for
transnational limitations on what maritime powers could do to
navigate the oceans and exploit their resources.
 Political, strategic, and economic issues are reflected in the
historical tension between the exercise of state sovereignty
over the sea and the idea of “the free sea.”
 By the 19th century the concept of the free seas, open to all,
was the prevalent view, reflecting the dominance of large
maritime powers, and Great Britain in particular, thus fostering
a body of law that favored free navigation and the conduct of
both commerce and naval operations across the world’s oceans.
Background of the Law of the Sea Convention

 The League of Nations in the early 1930s to decide on

extending State claims of sovereignty over adjacent waters.
 In 1945, President Harry S. Truman extended the U.S.’s
control to all the natural resources on its continental shelf,
under the customary international law principle that a nation
has a right to protect its natural resources.
 Chile, Peru, and Ecuador followed that example, extending
their claim to 200 nautical miles to include their fishing
grounds.
 Most States extended their territorial waters to 12 nautical
miles. In subsequent years, various attempts were made to
create a broad-spectrum law of the sea regime that ultimately
culminated in the creation of the present Convention
First and Second Conferences on the Law of the Sea
 The first off-shore oil rig out of the sight of land started
producing in 1947, and there was slow growth of off-shore
operations through the 1950s. In the 1960s there was a boom in
activity and technology; platforms began drilling thousands of
feet below the surface and could be located further and further
from shore.
 During the same period, advances were made in fishing.
Vessels increased in size and could travel further from port and
stay out longer. Nations began to exploit distant fishing waters
without restraint.
 Issues of geopolitics and nationalism, in addition to interest in
oceanic resources, amplified the desire of States to assert
sovereign rights over increasingly larger areas of the ocean. All
of these trends increased the pressure to adapt the principles of
customary law of the sea to a changing world environment.
 In 1956 the U.N. convened its first Conference on the Law of
the Sea. Ending in 1958, the result of the first Conference was
four treaties:
 The Convention on the Territorial Sea and Contiguous Zone,
 The Convention on the Continental Shelf.
 The Convention on the High Seas
 The Convention on Fishing and Conservation of Living
Resources of the High Seas.
 These treaties entered into force between 1962 and 1966.
 Though the Conference was heralded as a success, it failed to
address some key issues, including the issue of the breadth of
territorial waters over which coastal States could assert broad
sovereign rights. The U.N. held a second Conference in 1960,
but it only lasted six weeks, and no new agreements came of it
Third Conference on the Law of the Sea

 The unanswered issue of territorial waters needed to be

resolved.
 In 1966, President Lyndon B. Johnson referred to the deep
sea and the seabed as the legacy of all humans. The
following year, the Ambassador to the UN from Malta,
Arvid Pardo, presented a proposal to the UN General
Assembly declaring that the seabed should be part of the
common heritage of mankind.
 In 1973 the third Conference on the Law of the Sea
convened in New York. For nine years States negotiated
over the parameters of the law of the sea until the
Convention was completed in 1982.
What is UNCLOS

 UNCLOS stands for the United Nations Convention

for the Law of the Sea.
 It is also known as the Law of the Sea. It is an
international agreement or treaty which establishes
rules and guidelines for using the world’s oceans and
seas, so as to use and conserve marine resources and to
secure the preservation and protection of all the living
beings of the sea.
 The treaty was signed on 10 December 1982 in
Montego Bay, Jamaica, as a result of the United
Nations Conference on the Law of the Sea, which took
place from 1973 to 1982, and came into force in 1994.
Role of Convention

 The convention defines several maritime zones. Namely

the baseline, the territorial waters, the contiguous zone,
the exclusive economic zone, the continental shelf, the
International seabed area.
 The exclusive economic zone is international water, which
can be accessed and used by each country for economic
purposes. It is currently the dominant law of the sea.
 There is no limit or boundary set for commercial or
marine business in these International waters.
History of this Convention
 Several countries have expressed a desire to expand national maritime
information, use natural resources, protect fish stocks and reduce pollution.
For this purpose, the League of Nations held a conference at The Hague in
1930 but failed to reach an agreement.
 In the 20th century, technological development in fisheries and oil
production have increased the maritime scope in which countries can find
and use natural resources.
 This motivated the President of the United States, Harry S. Truman, in 1945
to increase the U.S. jurisdiction outside of all of its continental shelf natural
resources, far beyond the Country’s territorial waters.
 Grotius’s concept “Freedom of the Sea” became practically universal in the
20th century due to the global dominance of European navies.
 National rights and jurisdiction over oceans are limited to certain water belts
that stretch from the Country’s coast, usually 3 miles (5.6km), according to
Bynkershoek’s “cannon fire” rules.
 According to the maxim “Mare Liberum” all water outside the Country’s
border is considered as the International waters which is free for all
countries, but not for anyone.
 Responding to British lawyer Grotius, John Seldon
argued in a saying called “Mare Clausum” that the sea
was able to seize sovereign power like land and
territory.
 Seldon rejected Grotius’s assumptions, arguing that
there was no historical system for treating the sea
differently from the mainland, and there was nothing
inherent in the nature of the sea that prevented the
State from controlling its parts.
 Basically, International Law can frame the National
jurisdiction that appears above the sea.
Territorial rules with regard to the law of the sea
 Under Customary International Laws, the Law of the seas were not
codified only because of the fact that at that time the ocean was
considered as an important maritime property, through which
countries could claim their sovereignty, open up new trading rules
and also capture new territories with the help of either trading
companies or powerful navels.
 Nevertheless, by the 17th century, a Customary International Law
started evolving amongst countries, which categorically laid down
the fact that a country’s territorial limit from the coastal sea shall be
limited to 3 nautical miles, under which the Country shall exercise
absolute jurisdiction and no foreign vessels or ships will be allowed
within that territory, except for certain restricted conditions.
 This 3-mile rule was known as the “cannon-shot rule” and the
restrictions given for foreign ships to enter into the territorial waters
at a host was known as the “Doctrine of innocent passage” and if a
foreign vessel was exercising to the innocent passage, then no
conditions were allowed to run any over or over operations against
the territorial integrity of the host State.
Indian position

 India’s position in relation to the Law of the sea is

generally governed by Article 297 of the Indian
constitution and laws on waters, continental shelf, EEZ
and other maritime zones.
 Maritime zone Law defines Indian sovereignty over
the waters and the seabed, as well as the land and
airspace above those waters.
 An area of the boundary line is where each point is 12
nautical miles from the closet point to the baseline. All
foreign vessels have the right pass that is innocent
passage through territorial waters
Contiguous Zone

 The contiguous zone is the part of the sea that is outside and
adjacent to the territorial waters of a coastal country.
 This is not the object of a subsidiary, but in this coastal
country, they can exercise certain jurisdictional rights. The
concept of an adjacent zone develops because countries cannot
effectively protect all their interests because of the limited
interference on the territorial sea.
 The 1982 convention established the concept of an exclusive
economic zone (EEZ) which fully covers the contiguous
zones.
 According to Article 33 of the 1982 Convention, Contiguous
zone must not be more than 24 nautical miles from the baseline
where the territorial sea area is measured. Thus the area of the
contiguous area is 12 miles from the territorial sea.
Continental Shelf
 According to W.Friedman, the continental shelf can be
defined as the zone around the continent that extends from
a low water line to depth and usually marked towards
greater depth.
 What is commonly referred to as a “continental shelf” is a
sloping platform that covers continents and islands. This is
a submerged seabed that borders continental landmass and
is found as an extension or part of that land. It usually
extends to a depth of about 200 meters.
 The coastal countries have limited sovereignty rights on
the continental shelf to explore and use “natural
resources”, not sovereignty.
Exclusive Economic Zone
 An exclusive economic zone is a sea zone prescribed by
UNCLOS, over which a State has several rights regarding the
exploration and use of marine resources including energy
production from water and wind.
 It stretches from the baseline, until 200 nautical miles (370.4
km) from its coast. In geographical terms, the EEZ may also
include the continental shelf.
 The main difference between the territorial sea (12-mile rule)
and the exclusive economic zone is that while territorial sea
confers full sovereignty over the waters, EEZ is merely a
sovereign right which refers to coastal State right below the
surface of the sea.
 An example of an exclusive economic zone is the Bombay
High, between 73 to 74 nautical miles of the Indian coast
which is used for oil exploration by the Indian government.
Flag State Rule

 For legal purposes, a vessel, ship, aircraft, the submarine

has to be registered in a particular country, and for all
practical purposes, it must fly or display the flag of the
registered country.
 The Flag State rule is applicable for both military and
commercial ships, also for all kinds of oil tanks and even
cruise ships.
 The Flag State rule principal has also been implemented
under Part VII Article 92 of UNCLOS and even in
environmental disputes, the Flag State rule can be
implemented under Article 217(1) of UNCLOS, 1982.
 Rights of the Coastal States

 The States cannot exercise sovereignty over coastal State. They

will exercise sovereignty rights to explore and exploit minerals,
non-living resources of the ocean floor and soil when the
primary 5 years of production at that place.
 The speed shall increase by 125th of the value of each
resulting year till 12 years and shall stay seven-membered
thereafter. If coastal States don’t explore or exploit shelf
resources no alternative State could undertake these activities
without its specific consent.
 However, the rights of the coastal State over the seabed don’t
have an effect on the regime freedom of navigation on the high
seas or that of the airspace higher than the superimposed
waters.
High Seas

 The high seas mean, all the parts which are not coming under
EEZ, territory or inland waters of a country. This rule was
formulated by Grotius in his maxim on “Mare Liberum” in
1609 and claimed that the sea could not be owned by anyone.
 As a result, all States supported that ships can go and use
freedom of navigation, fight, fishing and building artificial
islands etc. But, the command has been considerably changed
under the convention on the Law of the sea of 1982.
 Article 87(2) of the convention lays down the limitation of the
general nature on the freedom of high seas by stating that the
freedom of the high seas “shall be exercised with due regard to
the interests of other States in their exercise of the freedom of
high seas”.
 Shipping and fishing are the main areas of the sea.
Depending on human development, there were many cases
of the use of technology, and sometimes they attempted to
satisfy the needs of human beings.
 Many other resources and minerals, natural gas, oil, sand
and gravel, diamonds, gold and other resources were made
from the seabed.
 With the development of trade in the 20th century and the
inexhaustible realization of sea use, the classic principle of
“Freedom of the Sea ” was pushed into the background
 Law of the Sea, branch of international law concerned
with public order at sea. Much of this law is codified
in the United Nations Convention on the Law of the
Sea, signed Dec. 10, 1982.
 The convention, described as a “constitution for the
oceans,” represents an attempt to codify international
law regarding territorial waters, sea-lanes,
and ocean resources.
 It came into force in 1994 after it had been ratified by
the requisite 60 countries; by the early 21st century the
convention had been ratified by more than 150
countries.
 United Nations Convention on the Law of the Sea United
Nations Convention on the Law of the Sea
 Article 3, Breadth of the territorial sea
 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 this
Convention
 Article 4 Outer limit of the territorial sea
 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.
 Article 5 Normal baseline
 Except where otherwise provided in this Convention, 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.
INNOCENT PASSAGE IN THE TERRITORIAL SEA
 Article 17 Right of innocent passage
 Subject to this Convention, ships of all States, whether coastal or land-
locked, enjoy the right of innocent passage through the territorial sea.
 Article 18 Meaning of passage,
 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
 Article 19 Meaning of innocent passage
 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 this Convention 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) any exercise or practice with weapons of any kind;
 (c) any act aimed at collecting information to the prejudice of the defence or security of the
coastal State;
 (d) any act of propaganda aimed at affecting the defence or security of the coastal State;
 (e) the launching, landing or taking on board of any aircraft;
 (f) the launching, landing or taking on board of any military device;
 (g) the loading or unloading of any commodity, currency or person contrary to the customs,
fiscal, immigration or sanitary laws and regulations of the coastal State;
 (h) any act of wilful and serious pollution contrary to this Convention;
 (i) any fishing activities;
 (j) the carrying out of research or survey activities;
 (k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State; (l) any other activity not having a direct bearing on passage.
 Article 20 Submarines and other underwater vehicles
 In the territorial sea, submarines and other underwater
vehicles are required to navigate on the surface and to show
their flag.
 Article 21 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 safety of navigation and the regulation of maritime traffic; (b) the
protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines; (d) the conservation of the living
resources of the sea; (e) the prevention of infringement of the fisheries laws
and regulations of the coastal State; (f) the preservation of the environment of
the coastal State and the prevention, reduction and control of pollution
thereof; (g) marine scientific research and hydrographic surveys; (h) the
prevention of infringement of the customs, fiscal, immigration or sanitary laws
and regulations of the coastal State.
 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.
 RULES APPLICABLE TO MERCHANT SHIPS AND
GOVERNMENT SHIPS OPERATED FOR COMMERCIAL
PURPOSES
 Article 27 Criminal jurisdiction on board a foreign ship
 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;
 (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.
 3. In the cases provided for in paragraphs 1 and 2, the coastal State
shall, if the master so requests, notify a diplomatic agent or consular
officer of the flag State before taking any steps, and shall facilitate
contact between such agent or officer and the ship's crew. In cases of
emergency this notification may be communicated while the measures
are being taken.
 4. In considering whether or in what manner an arrest should be made,
the local authorities shall have due regard to the interests of navigation.
 5. Except as provided in Part XII or with respect to violations of laws
and regulations adopted in accordance with Part V, the coastal State may
not take any steps 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 before the ship entered the territorial sea, if
the ship, proceeding from a foreign port, is only passing through the
territorial sea without entering internal waters.
Article 28 Civil jurisdiction in relation to foreign
ships
 1. The coastal State should not stop or divert a foreign ship passing
through the territorial sea for the purpose of exercising civil
jurisdiction in relation to a person on board the ship.
 2. The coastal State may not levy execution against or arrest the
ship for the purpose of any civil proceedings, save only in respect
of obligations or liabilities assumed or incurred by the ship itself in
the course or for the purpose of its voyage through the waters of
the coastal State.
 3. Paragraph 2 is without prejudice to the right of the coastal
State, in accordance with its laws, to levy execution against or to
arrest, for the purpose of any civil proceedings, a foreign ship
lying in the territorial sea, or passing through the territorial sea
after leaving internal waters.
WARSHIPS AND OTHER GOVERNMENT SHIPS
OPERATED FOR NON-COMMERCIAL PURPOSES
 Article 29 Definition of warships
 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 disciplin.
 Article 31 Responsibility of the flag State for damage caused by a
warship or other government ship operated for non-commercial
purposes
 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.
CONTIGUOUS ZONE
 Article 33 Contiguous zone
 1. In a zone contiguous to its territorial sea, described as the
contiguous zone, 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.
 2. The contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial sea is
measured.
STRAITS
 Article 34 Legal status of waters forming straits used for
international navigation
 1. The regime of passage through straits used for
international navigation established in this Part shall not in
other respects affect the legal status of the waters forming
such straits or the exercise by the States bordering the straits
of their sovereignty or jurisdiction over such waters and their
air space, bed and subsoil.
 2. The sovereignty or jurisdiction of the States bordering the
straits is exercised subject to this Part and to other rules of
international law
 Article 38 Right of transit passage
 1. In straits referred to in article 37, all ships and aircraft enjoy the right
of transit passage, which shall not be impeded; except that, if the strait
is formed by an island of a State bordering the strait and its mainland,
transit passage shall not apply if there 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.
 2. 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.
 3. Any activity which is not an exercise of the right of transit passage
through a strait remains subject to the other applicable provisions of this
Convention. A
 Article 39 Duties of ships and aircraft during transit passage
 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 incident 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.
 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
ARCHIPELAGIC STATES
The Bahamas, Fiji, Indonesia, Papua New Guinea and the Philippines
EXCLUSIVE ECONOMIC ZONE

 Article 55 Specific legal regime of the exclusive economic

zone 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.
 Article 56 Rights, jurisdiction and duties of the
coastal State in the exclusive economic zone
 1. In the exclusive economic zone, the coastal State 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:
 (i) the establishment and use of artificial islands, installations and structures;
 (ii) marine scientific research;
 (iii) the protection and preservation of the marine environment;
 (c) other rights and duties provided for in this Convention.
 2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, 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.
 3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
Article 58 Rights and duties of other States in the
exclusive economic zone

 1. In the exclusive economic zone, all States, whether coastal or land-

locked, enjoy, subject to the relevant provisions of this Convention, the
freedoms referred to in article 87 of navigation and overflight and of the
laying of submarine cables and pipelines, and 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. Articles 88 to 115 and other pertinent rules of international law
apply to the exclusive economic zone in so far as they are not
incompatible with this Part.
 3. In exercising their rights and performing their duties under this
Convention in the exclusive economic zone, 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 this Part.
Article 76 Definition of the continental shelf
 1. 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 nautical miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the continental margin does not
extend up to that distance.
 2. The continental shelf of a coastal State shall not extend beyond the limits provided for
in paragraphs 4 to 6.
 3. The continental margin comprises the submerged prolongation of the land mass of the
coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It
does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
 4. (a) For the purposes of this Convention, the coastal State shall establish the outer edge
of the continental margin wherever the margin extends beyond 200 nautical miles from
the baselines from which the breadth of the territorial sea is measured, by either:
 (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed
points at each of which the thickness of sedimentary rocks is at least 1 per cent of the
shortest distance from such point to the foot of the continental slope; or
 (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not
more than 60 nautical miles from the foot of the continental slope.
 (b) In the absence of evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base
 5. The fixed points comprising the line of the outer limits of the continental shelf on
the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), 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 metre isobath,
which is a line connecting the depth of 2,500 metres
 6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit
of the continental shelf shall not exceed 350 nautical miles from the baselines from
which the breadth of the territorial sea is measured. This paragraph does not apply to
submarine elevations that are natural components of the continental margin, such as its
plateaux, rises, caps, banks and spurs
 7. The coastal State shall delineate the outer limits of its continental shelf, where that
shelf extends beyond 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured, by straight lines not exceeding 60 nautical miles in
length, connecting fixed points, defined by coordinates of latitude and longitude.
 8. Information on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured shall be submitted
by the coastal State to the Commission on the Limits of the Continental Shelf set up
under Annex II on the basis of equitable geographical representation. The Commission
shall make recommendations to coastal States on matters related to the establishment
of the outer limits of their continental shelf. The limits of the shelf established by a
coastal State on the basis of these recommendations shall be final and binding.
Article 77 Rights of the coastal State over the continental shelf

 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 referred to in paragraph 1 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, that is to say, organisms
which, at the harvestable stage, either are immobile on or under the
seabed or are unable to move except in constant physical contact with
the seabed or the subsoil.
 Article 69 Right of land-locked States
 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 subregion or region, taking
into account the relevant economic and geographical circumstances of all the States
concerned and in conformity with the provisions of this article and of articles 61 and
62.
 2. 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:
 (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
this article, 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 land-locked States and geographically disadvantaged
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
 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,
subregional or regional basis to allow for participation of developing land-
locked States of the same subregion or region in the exploitation of the living
resources of the exclusive economic zones of coastal States of the subregion 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 subregion 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
subregions or regions where the coastal States may grant to land-locked States
of the same subregion or region equal or preferential rights for the exploitation
of the living resources in the exclusive economic zones.
 Article 70, Right of geographically disadvantaged States

 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 exclusive economic zones of coastal States of the same subregion or
region, taking into account the relevant economic and geographical circumstances of
all the States concerned and in conformity with the provisions of this article and of
articles 61 and 62.
 2. For the purposes of this Part, "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 subregion or region for adequate
supplies of fish for the nutritional purposes of their populations or parts thereof, and
coastal States which can claim no exclusive economic zones 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:
 (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 this article, 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;
 4. 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, subregional or regional basis to allow for
participation of developing geographically disadvantaged States of the same subregion or
region in the exploitation of the living resources of the exclusive economic zones of
coastal States of the subregion 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 3 shall also be taken into account
 5. Developed geographically disadvantaged 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 subregion 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
 6. The above provisions are without prejudice to arrangements agreed upon in subregions
or regions where the coastal States may grant to geographically disadvantaged States of
the same subregion or region equal or preferential rights for the exploitation of the living
resources in the exclusive economic zones.
 Article 71 Non-applicability of articles 69 and 70
 The provisions of articles 69 and 70 do not apply in the case of a
coastal State whose economy is overwhelmingly dependent on the
exploitation of the living resources of its exclusive economic
zone.
 Article 72 Restrictions on transfer of rights
 1. Rights provided under articles 69 and 70 to exploit living
resources shall not be directly or indirectly transferred to third
States or their nationals by lease or licence, by establishing joint
ventures or in any other manner which has the effect of such
transfer unless otherwise agreed by the States concerned.
 2. The foregoing provision does not preclude the States
concerned from obtaining technical or financial assistance from
third States or international organizations in order to facilitate the
exercise of the rights pursuant to articles 69 and 70, provided
that it does not have the effect referred to in paragraph 1.
 North Sea Continental Shelf Cases 1969
(The International Court of Justice)

Fact of Case,
 The dispute, was submitted to the Court on 20 February1967,
related to the delimitation of the continental shelf between the
Federal Republic of Germany and Denmark on the one hand, and
between the Federal Republic of Germany and the Netherlands on
the other
 Both Denmark and the Netherlands submitted an individual
dispute with Germany to the ICJ involving claims to the North
Sea Continental Shelf.
 These two separate claims were joined by the ICJ, and decided as
one case. The parties sought a method by which the Continental
Shelf could be fairly delimited. All parties agreed the Court was
not to physically apportion claims, but merely prescribe a method
of delimitation for the parties to follow
 That the boundaries between their respective areas of the continental
shelf in the North Sea and the area claimed by the Federal Republic of
Germany (D), should be determined by the application of the principle
of equidistance as set forth in Article 6 of the Geneva Convention of
1958 on the Continental Shelf, which by January 1, 1969 had been
ratified or acceded to by 39 states but to which Germany was not a
party, was the basis of Denmark’s (D) and the Netherland’s (P)
contention.
 Because the use of the delimitation method was not merely a
conventional obligation, but a rule that was part of the corpus of
general international law and like other rules of general or customary
international law, which was binding automatically on Germany (D),
independent of any specific assent, direct or indirect, given by
Germany (D), Denmark (P) and the Netherland’s (P) contended that
Germany (D) was bound to accept the delimitation on an equidistance
basis.
 Netherlands and Denmark had drawn partial boundary lines
based on the equidistance principle (A-B and C-D). An
agreement on further prolongation of the boundary proved
difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance
principle (B-E and D-E)
 where as Germany was of the view that, together, these two
boundaries would produce an inequitable result for her.
Germany stated that due to its concave coastline, such a line
would result in her loosing out on her share of the
continental shelf based on proportionality to the length of its
North Sea coastline.
 The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so,
the Court had to decide if the principles espoused by the
parties were binding on the parties either through treaty law
or customary international law.
Questions before the Court
 Is Germany under a legal obligation to accept the
equidistance-special circumstances principle, contained in
Article 6 of the Geneva Convention on the Continental Shelf
of 1958, either as a customary international law rule or on
the basis of the Geneva Convention?
 Court’s Decision
 The use of the equidistance method had not crystallised into
customary law and the method was not obligatory for the
delimitation of the areas in the North Sea related to the
present proceedings.
 The Court found that the Geneva Convention is not binding
on German, as it did not ratify it.
 While the Geneva Convention does call for the rule of
equidistance, the Court found that the Geneva Convention
was not binding upon Germany. Moreover, the stipulations
outlined in the Geneva Convention would have allowed
Germany to opt out in this area, so its membership in the
treaty is a moot point.
 Upon inspection of the language of both the Geneva Convention and the
Truman Proclamation, equidistance was found to be a last resort rather
than an a priori rule. Also looking to these sources, the Court rejected
claims which included equidistance in customary international law.
Theses texts which originally included the rule of equidistance only did
so for secondary purposes, and the utilization of it was insufficient to
prove it to be either customary international law, or a general law of
practicality. The Court also pointed out mathematical problems of
contradiction under the rule
 The Court rejected Germany’s claim of proportional apportionment
because doing so would intrude upon the natural claims due to States
based on natural prolongations of land. Also, the Court’s role was to
outline a mechanism of delimitation only
 The Court found, therefore, that the two parties must draw up an
agreement taking both the maximization of area and proportionality into
account. These were to be based upon “equitable principles.” The holding
here is somewhat inconclusive, but the opinion is significant to
international law, regardless
Principles

 a. The international law elements of the case are the power of

treaties, customary international law, and the principle of
equidistance in claims to sea territory.
 b. The rule of law upheld in this case is the Geneva Convention.
 c. There are several principles in this case manifested in the
Geneva Convention. The court rejected the principle of
equidistance. It upheld, rather, the idea of “equitable principles,”
which is only defined as those which maximizes land claims based
on several cooperative factors. The Court also upholds the
principle of customary international law by using the text of the
Geneva Convention and its purpose to exclude the mechanism of
equidistance.
 Nature of the treaty obligation: Is the 1958 Geneva Convention, and in
particular Article 6, binding on Germany?

 Article 6 of the Geneva Convention stated that unless the parties had
already agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply. Germany had
signed, but not ratified, the Geneva Convention, while Netherlands and
Denmark were parties to the Convention. The latter two States argued
that while Germany is not a party to the Convention (not having ratified
it), she was still bound by Article 6 of the Convention because:
 “…(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has
manifested its acceptance of the conventional regime; or has recognized it as being
generally applicable to the delimitation of continental shelf areas…
 (2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular Denmark
and the Netherlands, to rely on the attitude thus taken up” (the latter is called
the principle of estoppel).
 The Court rejected the first argument. It said that only a ‘very definite
very consistent course of conduct on the part of a State would allow the
Court to presume that the State had somehow become bound by a treaty
(by a means other than in the formal manner: i.e. ratification) when the
State was ‘at all times fully able and entitled to…’ accept the treaty
commitments in a formal manner. The Court held that Germany had not
unilaterally assumed obligations under the Convention. The court also
took notice of the fact that even if Germany ratified the treaty, she had
the option of entering into a reservation on Article 6, following which
that particular article would no longer be applicable to Germany (in
other words, even if one were to assume that Germany had intended to
become a party to the Convention, it does not presuppose that it would
have also undertaken those obligations contained in Article 6).
 The Court held that the existence of a situation of estoppel would have
allowed Article 6 to become binding on Germany – but held that
Germany’s action did not support an argument for estoppel. The Court
also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6, is not
sufficient to state that the principle is now binding upon it.
Nature of the customary international law obligation: Is Germany
bound by the provisions of Article 6 of the Geneva Convention in so
far as they reflect customary international law?
 Netherlands and Denmark argued that Article 6 also
reflected ‘the accepted rule of general international law on
the subject of continental shelf delimitation’ and that it
existed independently of the Convention. Therefore, they
argued, Germany is bound by the subject matter of Article
6 by way of customary international law.
 To decide if the equidistance principle bound Germany by
way of customary international law, the Court examined (1)
the status of the principle contained in Article 6 as it stood
when the Convention was being drawn up; and (2) its status
after the Convention came into force
Did the provisions in Article 6 on the equidistance principle attain the
customary law status after the Convention came into force?
 For a customary rule to emerge the Court held that it needed:
 (1) very widespread and representative participation in the
Convention, including States whose interests were specially
affected (in this case, they were coastal States) (i.e. generality);
and
 (2) virtually uniform practice (i.e. consistent and uniform usage)
undertaken in a manner that demonstrates
 (3) a general recognition of the rule of law or legal obligation (i.e.
opinio juries). In the North Sea Continental Shelf cases the court
held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
 International Tribunal for the Law of the Sea

 The origins of the Convention date from 1 November 1967 when

Ambassador Arvid Pardo of Malta addressed the General Assembly of
the United Nations and called for "an effective international regime
over the seabed and the ocean floor beyond a clearly defined national
jurisdiction". This led to the convening, in 1973, of the Third United
Nations Conference on the Law of the Sea, which after nine years of
negotiations adopted the Convention.
 The International Tribunal for the Law of the Sea is an independent
judicial body established by the United Nations Convention on the Law
of the Sea to adjudicate disputes arising out of the interpretation and
application of the Convention. The Tribunal is composed of 21
independent members, elected from among persons enjoying the
highest reputation for fairness and integrity and of recognized
competence in the field of the law of the sea.
 The Tribunal has jurisdiction over any dispute concerning the
interpretation or application of the Convention, and over all
matters specifically provided for in any other agreement which
confers jurisdiction on the Tribunal (Statute, article 21).
 The Tribunal is open to States Parties to the Convention (i.e.
States and international organisations which are parties to the
Convention). It is also open to entities other than States Parties,
i.e., States or intergovernmental organisations which are not
parties to the Convention, and to state enterprises and private
entities "in any case expressly provided for in Part XI or in any
case submitted pursuant to any other agreement conferring
jurisdiction on the Tribunal which is accepted by all the parties to
that case" (Statute, article 20).
 ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE
LAW OF THE SEA

 General provisions
 1. The International Tribunal for the Law of the Sea is constituted
and shall function in accordance with the provisions of this
Convention and this Statute.
 2. The seat of the Tribunal shall be in the Free and Hanseatic City
of Hamburg in the Federal Republic of Germany.
 3. The Tribunal may sit and exercise its functions elsewhere
whenever it considers this desirable.
 4. A reference of a dispute to the Tribunal shall be governed by the
provisions of Parts XI and XV.
 Article 2 Composition

 1. The Tribunal shall be composed of a body of 21 independent

members, elected from among persons enjoying the highest reputation
for fairness and integrity and of recognized competence in the field of
the law of the sea.
 2. In the Tribunal as a whole the representation of the principal legal
systems of the world and equitable geographical distribution shall be
assured.
 Article 3 Membership
 1. No two members of the Tribunal may be nationals of the same State. A
person who for the purposes of membership in the Tribunal could be
regarded as a national of more than one State shall be deemed to be a
national of the one in which he ordinarily exercises civil and political
rights.
 2. There shall be no fewer than three members from each geographical
group as established by the General Assembly of the United Nations.
Article 4 Nominations and elections

 1. Each State Party may nominate not more than two persons having the qualifications
prescribed in article 2 of this Annex. The members of the Tribunal shall be elected
from the list of persons thus nominated.
 2. At least three months before the date of the election, the Secretary-General of the
United Nations in the case of the first election and the Registrar of the Tribunal in the
case of subsequent elections shall address a written invitation to the States Parties to
submit their nominations for members of the Tribunal within two months. He shall
prepare a list in alphabetical order of all the persons thus nominated, with an
indication of the States Parties which have nominated them, and shall submit it to the
States Parties before the seventh day of the last month before the date of each
election.
 3. The first election shall be held within six months of the date of entry into force of
this Convention
 4. The members of the Tribunal shall be elected by secret ballot. Elections shall be held
at a meeting of the States Parties convened by the Secretary-General of the United
Nations in the case of the first election and by a procedure agreed to by the States
Parties in the case of subsequent elections. Two thirds of the States Parties shall
constitute a quorum at that meeting. The persons elected to the Tribunal shall be those
nominees who obtain the largest number of votes and a two-thirds majority of the
States Parties present and voting, provided that such majority includes a majority of
the States Parties
 Article 5 Term of office
 1. The members of the Tribunal shall be elected for nine years and may
be re-elected; provided, however, that of the members elected at the
first election, the terms of seven members shall expire at the end of
three years and the terms of seven more members shall expire at the end
of six years.
 2. The members of the Tribunal whose terms are to expire at the end of
the above-mentioned initial periods of three and six years shall be
chosen by lot to be drawn by the Secretary-General of the United
Nations immediately after the first election.
 3. The members of the Tribunal shall continue to discharge their duties
until their places have been filled. Though replaced, they shall finish any
proceedings which they may have begun before the date of their
replacement.
 4. In the case of the resignation of a member of the Tribunal, the letter
of resignation shall be addressed to the President of the Tribunal.The
place becomes vacant on the receipt of that letter.
 Article 7 Incompatible activities
 1. No member of the Tribunal may exercise any political or
administrative function, or associate actively with or be
financially interested in any of the operations of any
enterprise concerned with the exploration for or
exploitation of the resources of the sea or the seabed or other
commercial use of the sea or the seabed.
 2. No member of the Tribunal may act as agent, counsel or
advocate in any case.
 3. Any doubt on these points shall be resolved by decision of
the majority of the other members of the Tribunal present.
 Article 8 Conditions relating to participation of members in a
particular case
 1. No member of the Tribunal may participate in the decision of
any case in which he has previously taken part as agent, counsel or
advocate for one of the parties, or as a member of a national or
international court or tribunal, or in any other capacity.
 2. If, for some special reason, a member of the Tribunal considers
that he should not take part in the decision of a particular case, he
shall so inform the President of the Tribunal.
 3. If the President considers that for some special reason one of
the members of the Tribunal should not sit in a particular case, he
shall give him notice accordingly.
 4. Any doubt on these points shall be resolved by decision of the
majority of the other members of the Tribunal present
 Article 12 President, Vice-President and Registrar
 1. The Tribunal shall elect its President and Vice-President for three years; they
may be re-elected.
 2. The Tribunal shall appoint its Registrar and may provide for the appointment
of such other officers as may be necessary.
 3. The President and the Registrar shall reside at the seat of the Tribunal.
 Article 13 Quorum
 1. All available members of the Tribunal shall sit; a quorum of 11 elected
members shall be required to constitute the Tribunal.
 2. Subject to article 17 of this Annex, the Tribunal shall determine which
members are available to constitute the Tribunal for the consideration of a
particular dispute, having regard to the effective functioning of the chambers as
provided for in articles 14 and 15 of this Annex.
 3. All disputes and applications submitted to the Tribunal shall be heard and
determined by the Tribunal, unless article 14 of this Annex applies, or the
parties request that it shall be dealt with in accordance with article 15 of this
Annex.
 Article 14 Seabed Disputes Chamber
 A Seabed Disputes Chamber shall be established in accordance with the
provisions of section 4 of this Annex. Its jurisdiction, powers and functions
shall be as provided for in Part XI, section 5.
 Article 15 Special chambers
 1. The Tribunal may form such chambers, composed of three or more of its
elected members, as it considers necessary for dealing with particular
categories of disputes.
 2. The Tribunal shall form a chamber for dealing with a particular dispute
submitted to it if the parties so request. The composition of such a chamber
shall be determined by the Tribunal with the approval of the parties.
 3. With a view to the speedy dispatch of business, the Tribunal shall form
annually a chamber composed of five of its elected members which may hear
and determine disputes by summary procedure. Two alternative members shall
be selected for the purpose of replacing members who are unable to
participate in a particular proceeding.
 4. Disputes shall be heard and determined by the chambers provided for in this
article if the parties so request.
 5. A judgment given by any of the chambers provided for in this article and in
article 14 of this Annex shall be considered as rendered by the Tribunal.
 COMPETENCE Article 20 Access to the Tribunal
 1. The Tribunal shall be open to States Parties.
 2. The Tribunal shall be open to entities other than States Parties in
any case expressly provided for in Part XI or in any case submitted
pursuant to any other agreement conferring jurisdiction on the
Tribunal which is accepted by all the parties to that case.
 Article 21 Jurisdiction
 The jurisdiction of the Tribunal comprises all disputes and all
applications submitted to it in accordance with this Convention and
all matters specifically provided for in any other agreement which
confers jurisdiction on the Tribunal.
 SECTION 4. SEABED DISPUTES CHAMBER Article 35 Composition 1. The Seabed
Disputes Chamber referred to in article 14 of this Annex shall be composed of 11
members, selected by a majority of the elected members of the Tribunal from among
them.
 2. In the selection of the members of the Chamber, the representation of the principal
legal systems of the world and equitable geographical distribution shall be assured. The
Assembly of the Authority may adopt recommendations of a general nature relating to
such representation and distribution.
 3. The members of the Chamber shall be selected every three years and may be
selected for a second term.
 4. The Chamber shall elect its President from among its members, who shall serve for
the term for which the Chamber has been selected.
 5. If any proceedings are still pending at the end of any three-year period for which the
Chamber has been selected, the Chamber shall complete the proceedings in its original
composition.
 6. If a vacancy occurs in the Chamber, the Tribunal shall select a successor from among
its elected members, who shall hold office for the remainder of his predecessor's term.
 7. A quorum of seven of the members selected by the Tribunal shall be required to
constitute the Chamber.
 Article 36 Ad hoc chambers
 1. The Seabed Disputes Chamber shall form an ad hoc chamber,
composed of three of its members, for dealing with a particular dispute
submitted to it in accordance with article 188, paragraph 1(b). The
composition of such a chamber shall be determined by the Seabed
Disputes Chamber with the approval of the parties.
 2. If the parties do not agree on the composition of an ad hoc chamber,
each party to the dispute shall appoint one member, and the third
member shall be appointed by them in agreement. If they disagree, or if
any party fails to make an appointment, the President of the Seabed
Disputes Chamber shall promptly make the appointment or
appointments from among its members, after consultation with the
parties.
 3. Members of the ad hoc chamber must not be in the service of, or
nationals of, any of the parties to the dispute.
 SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS

 Article 186, Seabed Disputes Chamber of the International

Tribunal for the Law of the Sea.
 The establishment of the Seabed Disputes Chamber and the
manner in which it shall exercise its jurisdiction shall be governed
by the provisions of this section, of Part XV and of Annex VI.
 Article 187, Jurisdiction of the Seabed Disputes Chamber

 The Seabed Disputes Chamber shall have jurisdiction under this

Part and the Annexes relating thereto in disputes with respect to
activities in the Area falling within the following categories:
 (a) disputes between States Parties concerning the interpretation
or application of this Part and the Annexes relating thereto;
 (b) disputes between a State Party and the Authority concerning:
(i) acts or omissions of the Authority or of a State Party alleged to
be in violation of this Part or the Annexes relating thereto or of
rules, regulations and procedures of the Authority adopted in
accordance therewith; or
 (ii) acts of the Authority alleged to be in excess of jurisdiction or a
misuse of power;
 (c) disputes between parties to a contract, being States Parties, the
Authority or the Enterprise, state enterprises and natural or juridical
persons referred to in article 153, paragraph 2(b), concerning: (i) the
interpretation or application of a relevant contract or a plan of work; or
(ii) acts or omissions of a party to the contract relating to activities in
the Area and directed to the other party or directly affecting its
legitimate interests;
 (d) disputes between the Authority and a prospective contractor who has
been sponsored by a State as provided in article 153, paragraph 2(b), and
has duly fulfilled the conditions referred to in Annex III, article 4,
paragraph 6, and article 13, paragraph 2, concerning the refusal of a
contract or a legal issue arising in the negotiation of the contract;
 (e) disputes between the Authority and a State Party, a state enterprise
or a natural or juridical person sponsored by a State Party as provided
for in article 153, paragraph 2(b), where it is alleged that the Authority
has incurred liability as provided in Annex III, article 22
 (f) any other disputes for which the jurisdiction of the Chamber is
specifically provided in this Convention
Article 188 Submission of disputes to a special chamber of the International
Tribunal for the Law of the Sea or an ad hoc chamber of the Seabed Disputes
Chamber or to binding commercial arbitration
 1. Disputes between States Parties referred to in article 187,
subparagraph (a), may be submitted: (a) at the request of the parties to
the dispute, to a special chamber of the International Tribunal for the
Law of the Sea to be formed in accordance with Annex VI, articles 15 and
17; or (b) at the request of any party to the dispute, to an ad hoc
chamber of the Seabed Disputes Chamber to be formed in accordance
with Annex VI, article 36
 2. (a) Disputes concerning the interpretation or application of a contract
referred to in article 187, subparagraph (c)(i), shall be submitted, at the
request of any party to the dispute, to binding commercial arbitration,
unless the parties otherwise agree. A commercial arbitral tribunal to
which the dispute is submitted shall have no jurisdiction to decide any
question of interpretation of this Convention.When the dispute also
involves a question of the interpretation of Part XI and the Annexes
relating thereto, with respect to activities in the Area, that question shall
be referred to the Seabed Disputes Chamber for a ruling.
 (b) If, at the commencement of or in the course of such
arbitration, the arbitral tribunal determines, either at the request
of any party to the dispute or proprio motu, that its decision
depends upon a ruling of the Seabed Disputes Chamber, the
arbitral tribunal shall refer such question to the Seabed Disputes
Chamber for such ruling. The arbitral tribunal shall then proceed
to render its award in conformity with the ruling of the Seabed
Disputes Chamber.
 (c) In the absence of a provision in the contract on the arbitration
procedure to be applied in the dispute, the arbitration shall be
conducted in accordance with the UNCITRAL Arbitration Rules
or such other arbitration rules as may be prescribed in the rules,
regulations and procedures of the Authority, unless the parties to
the dispute otherwise agree.
Article 189 Limitation on jurisdiction with regard to decisions of
the Authority
 The Seabed Disputes Chamber shall have no jurisdiction with regard to the
exercise by the Authority of its discretionary powers in accordance with this
Part; in no case shall it substitute its discretion for that of the Authority.
Without prejudice to article 191, in exercising its jurisdiction pursuant to
article 187, the Seabed Disputes Chamber shall not pronounce itself on the
question of whether any rules, regulations and procedures of the Authority are
in conformity with this Convention, nor declare invalid any such rules,
regulations and procedures. Its jurisdiction in this regard shall be confined to
deciding claims that the application of any rules, regulations and procedures of
the Authority in individual cases would be in conflict with the contractual
obligations of the parties to the dispute or their obligations under this
Convention, claims concerning excess of jurisdiction or misuse of power, and
to claims for damages to be paid or other remedy to be given to the party
concerned for the failure of the other party to comply with its contractual
obligations or its obligations under this Convention.
Article 190 Participation and appearance of sponsoring States Parties in
proceedings

 1. If a natural or juridical person is a party to a dispute referred to

in article 187, the sponsoring State shall be given notice thereof
and shall have the right to participate in the proceedings by
submitting written or oral statements.
 2. If an action is brought against a State Party by a natural or
juridical person sponsored by another State Party in a dispute
referred to in article 187, subparagraph (c), the respondent State
may request the State sponsoring that person to appear in the
proceedings on behalf of that person. Failing such appearance, the
respondent State may arrange to be represented by a juridical
person of its nationality.
Article 191 Advisory opinions

 The Seabed Disputes Chamber shall give advisory opinions at the

request of the Assembly or the Council on legal questions arising
within the scope of their activities. Such opinions shall be given as a
matter of urgency
Sources of International Law: An
Introduction
Dr. Shailendra Kumar
 Where does international law come from and how is it
made ?
 In particular, it is dangerous to try to transfer ideas from
national legal systems to the very different context of
international law.
 There is no “Code of International Law”.
 International law has no Parliament and nothing that can
really be described as legislation.
 While there is an International Court of Justice and a
range of specialized international courts and tribunals,
their jurisdiction is critically dependent upon the consent
of States and they lack what can properly be described as
a compulsory jurisdiction of the kind possessed by
national courts.
Source of International Law
 The result is that international law is made largely on a
decentralized basis by the actions of the 192 States which
make up the international community.
 The Statute of the ICJ, Art. 38 identifies five sources:
 Treaties between States
 Customary international law derived from the practice of
States
 General principles of law recognized by civilised nations;
 subsidiary means for the determination of rules of
international law:
 Judicial decisions and
 writings of “the most highly qualified publicists”.
Customary International Law
 It is convenient to start with customary law as this is both
the oldest source and the one which generates rules binding
on all States.
 Customary law is not a written source. A rule of customary
law, e.g., requiring States to grant immunity to a visiting
Head of State, is said to have two elements. First, there
must be widespread and consistent State practice – ie States
must, in general, have a practice of according immunity to
a visiting Head of State. Secondly, there has to be what is
called “opinio juris”, usually translated as “a belief in legal
obligation; ie States must accord immunity because they
believe they have a legal duty to do so.
 As the ICJ has put it
‘Not only must the acts concerned be a settled practice, but
they must also be such, or be carried out in such a way, as
to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule requiring it. … The
States concerned must feel that they are conforming to
what amounts to a legal obligation.’ (North Sea
Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)
 A new rule of customary international law cannot be
created unless both of these elements are present.
Practice alone is not enough – see, e.g., the Case of the
SS Lotus (1927). Nor can a rule be created by opinio
juris without actual practice – see, e.g., the Advisory
Opinion on Nuclear Weapons (1996).
 But these elements require closer examination. So far as
practice is concerned, this includes not just the practice of
the government of a State but also of its courts and
parliament. It includes what States say as well as what
they do. Also practice needs to be carefully examined for
what it actually says about law. The fact that some
(perhaps many) States practise torture does not mean that
there is not a sufficient practice outlawing it. To quote
from the ICJ’s decision in the Nicaragua case:
 ‘In order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of States should
in general be consistent with such a rule; and that
instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.’
(ICJ in Nicaragua ICJ Reps, 1986, p. 3 at 98.)
 Regarding opinio juris, the normal definition of a belief in
obligation (see, e.g., the North Sea Continental Shelf cases
(1969) above) is not entirely satisfactory. First, it ignores
the fact that many rules are permissive (eg regarding
sovereignty over the continental shelf), for which the real
opinio juris is a belief not in obligation but in right.
Secondly, and more fundamentally, there is something
artificial in talking of the beliefs of a State. It might be
better to consider opinio juris as the assertion of a legal
right or the acknowledgment of a legal obligation.
 Once there is sufficient practice together with opinio juris,
a new rule of custom will emerge. Subject only to what is
known as the “persistent objector” principle the new rule
binds all States. The persistent objector principle allows a
State which has persistently rejected a new rule even
before it emerged as such to avoid its application.
 Treaties
 Treaties (sometimes called agreements, conventions, exchanges
of notes or protocols) between States – or sometimes between
States and international organizations – are the other main
source of law
 Strictly speaking a treaty is not a source of law so much as a
source of obligation under law. Treaties are binding only on
States which become parties to them and the choice of whether
or not to become party to a treaty is entirely one for the State –
there is no requirement to sign up to a treaty. Why is a treaty
binding on those States which have become parties to it ? The
answer is that there is a rule of customary international law –
pacta sunt servanda – which requires all States to honour their
treaties. That is why treaties are more accurately described as
sources of obligation under law.
 But many treaties are also important as authoritative
statements of customary law. A treaty which is freely
negotiated between a large number of States is often
regarded as writing down what were previously unwritten
rules of customary law. That is obviously the case where a
treaty provision is intended to be codificatory of the
existing law.
 A good example is the Vienna Convention on the Law of
Treaties, 1969. Less than half the States in the world are
parties to it but every court which has considered the
matter has treated its main provisions as codifying
customary law and has therefore treated them as applying
to all States whether they are parties to the Convention or
not.
 In theory, where a treaty provision codifies a rule of
customary law the source of law is the original practice
and opinio juris – the treaty provision is merely evidence.
But that overlooks the fact that writing down a rule which
was previously unwritten changes that rule. From that
time on, it is the written provision to which everyone will
look and debates about the extent of the rule will largely
revolve around the interpretation of the text rather than an
analysis of the underlying practice.
 Moreover, even where a treaty provision is not intended to
be codificatory but rather is an innovation designed to
change the rule, it can become part of customary law if it
is accepted in practice. See, e.g., the North Sea
Continental Shelf cases (1969)
 ‘Although the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule
of customary international law on the basis of what was
originally a purely conventional rule, an indispensable
requirement would be that within the period in question,
short though it might be, State practice, including that of
States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of
the provision invoked; - and should moreover have
occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved.’ (ICJ Reps,
1969, p. 43)
 In reality the fact of a large number of States agreeing upon a
treaty provision is itself an important piece of State practice. If
those and other States subsequently apply the treaty provision –
especially where they are not parties to the treaty – then it can
quickly become part of customary international law.
 This consideration has led some writers to distinguish between
“traités contrats” (contractual treaties) which are only
agreements between the parties and traités lois (law-making
treaties). In my view this confuses rather than assists. All
treaties are contractual as between their parties. But some also
have an effect on the general law.
 In practice, it has been through the adoption of numerous
treaties on different areas of international law (war, terrorism,
diplomacy, treaty-making) that international law has undergone
its most important changes in the years since 1945
General Principles
 While treaties and custom are the most important sources of
international law, the others mentioned in Article 38 of the
ICJ Statute of the ICJ should not be ignored. General
principles of law recognized by civilised nations – the third
source – are seldom mentioned in judgments. They are
most often employed where the ICJ or another international
tribunal wants to adopt a concept such as the legal
personality of corporations (eg in the Barcelona Traction
Co. case (1970)) which is widely accepted in national legal
systems. But international law seldom adopts in its entirety
a legal concept from a particular national legal system;
instead the search is for a principle which in one form or
another is recognized in a wide range of national legal
systems.
Judicial Decisions

 Article 38(1)(d) refers to judicial decisions as a subsidiary means for

the determination of rules of law. In contrast to the position in common
law countries, there is no doctrine of binding precedent in international
law. Indeed, the Statute of the ICJ expressly provides that a decision of
the Court is not binding on anyone except the partiers to the case in
which that decision is given and even then only in respect of that
particular case (Article 59). Nevertheless, the ICJ refers frequently to
its own past decisions and most international tribunals make use of past
cases as a guide to the content of international law, so it would be a
mistake to assume that “subsidiary” indicated a lack of importance.
 Article 38(1)(d) does not distinguish between decisions of international
and national courts. The former are generally considered the more
authoritative evidence of international law on most topics (though not
those which are more commonly handled by national courts, such as the
law on sovereign immunity). But decisions of a State’s courts are a part
of the practice of that State and can therefore contribute directly to the
formation of customary international law.
Writings
 The writings of international lawyers may also be a
persuasive guide to the content of international law but
they are not themselves creative of law and there is a
danger in taking an isolated passage from a book or
article and assuming without more that it accurately
reflects the content of international law.
Other Sources
 The list of sources in Article 38 of the Statute is frequently criticised for
being incomplete. In particular, it makes no mention of the acts of the
different organs of the United Nations. Today there can be no doubting
the importance of those acts in shaping international law, although they
perhaps fit within the system of Article 38 better than is sometimes
imagined.
 The United Nations General Assembly has no power to legislate for the
international community; its resolutions are not legally binding.
However, many of those resolutions have an important effect on the
law-making process. Some resolutions are part of the treatymaking
process, attaching a treaty text negotiated in the framework of the
United Nations and recommended to the Member States by the
Assembly (this was the case with the Convention against Torture).
While it is the treaty which creates the legal obligation – and then only
for the States which choose to become party to it – the importance of
the United Nations in the process of creating that treaty should not be
underestimated.
 In addition, as I have already mentioned, the positions which
States take in the United Nations is part of their practice and a
resolution (or sequence of resolutions) which commands a
sufficiently widespread acceptance and which is regarded by
the States as embodying a rule of international law can have an
important effect on the development of customary international
law, so long as it is not contradicted by what States actually do
elsewhere (see, e.g., the discussion of the resolutions on
nuclear weapons in the Advisory Opinion on Nuclear Weapons
(1996)).
 The studies of international law produced by the International
Law Commission for the General Assembly, especially if
adopted by the Assembly, may also have an important effect on
customary international law, even if they are not turned into
treaties (the ILC Articles on State Responsibility adopted in
2001 are a good example).
 The position of the Security Council is somewhat
different. Decisions taken by the Council under Chapter
VII of the Charter and framed in mandatory terms are
legally binding on all States (Article 25 of the Charter).
Moreover, under Article 103 of the Charter the duty to
carry out a decision of the Council prevails over
obligations under all other international agreements (see
the Lockerbie cases (1992)). However, the Council does
not create new laws but rather obligations in relation to
specific issues and it is not a legislature (see the decision
of the ICTY in Tadic (1995)).
 A Hierarchy of Norms ?
 A controversial question is whether there is a hierarchy of
norms in international law. Article 38 makes no reference to
such a hierarchy but it is possible to discern elements of a
hierarchy in certain respects. It is now generally acknowledged
that a few rules of international law are of such fundamental
importance that they have the status of jus cogens, that is
peremptory norms from which no derogation is permitted.
Whereas States can always agree to depart (as between
themselves) from ordinary rules of customary international law,
they are not free to depart from or vary a rule of jus cogens.
Thus, a treaty which conflicts with a jus cogens rule is void
(Vienna Convention on the Law of Treaties, 1969, Article 53)
and such a rule will prevail over inconsistent rules of
customary international law.
 However, it is important to bear in mind that (a) there are very
few rules which possess the status of jus cogens (e.g. the
prohibitions of aggression, genocide, torture and slavery) and
the criteria for achieving such status are strict – near universal
acceptance not merely as a rule but as a rule from which no
derogation is permitted; (b) cases of conflict are very rare and
the suggestion that such a conflict exists should be carefully
scrutinised (see, e.g. the rejection both by the ICJ – Arrest
Warrant case (2002) – and the English courts – Jones v. Saudi
Arabia (2006) – of the suggestion that the law on sovereign
immunity conflicted with the prohibition of torture).
 A treaty prevails over customary law as between the parties to
the treaty but a treaty will not affect the rights of States not
party to that treaty. There is, therefore, no strict sense of
hierarchy between treaty and customary law, contrary to what
is sometimes alleged.
 Space Law
Dr. Shailendra Kumar
 Development of space Law
 Space age began when USSR launched its first satellite, Sputnik-1
on 4 October 1957.
 USA’s launch of Explore I
 UNGA RES 1348 (XIII) “Question of the Peaceful Use of Outer
Space” (13 December 1958)
 Definition and delimitation
 Space beyond airspace
 How to determine the upper limit of airspace?
 No precise line
 Theories of Demarcation
 * Usque ad Coelum Theory
 United States v. Causby [328 U.S. 256 (1945)]
 “It is ancient doctrine that at common law ownership of
the land extended to the periphery of the universe -
Cujus est solum ejus est usque ad coelum. But that doctrine
has no place in the modern world...”
 Gravitational Theory
 Difficulty to locate the exact point where the
earth’s gravitation ceases
 Air Space Theory
 A. Atmosphere Theory - End of territorial
atmosphere
 B. Aerodynamic Lift Theory - Enough air to lift the
aircrafts - Approximately 50 miles above the sea
level
 C. Biological Theory - Possibility of survival of life
 Theory of Satellite Orbit
Approximately 100 miles
 Karman Line Theory
83 km - A body moving with a velocity of 7 km per
second is not subject to aerodynamic elevation force but
it is subject to centrifugal force
 Depends on the speed & size of the object
 Theory of Effective Control
 Interest Theory
 Theory of National Security
 Intermediate or Zone Theory
Territorial space-
Contiguous space
Free space
 Functional Approach
Outer space begins where the space activities are said
have begun
None of the theories is perfect
Difficulty due to interdependent nature & technological
development
UNCOPUOS - No scientific and technical criteria could
be found
Divergence of opinion between different countries
Case by case determination
 Recognised common interest of mankind in outer space for
peaceful uses of outer space
 Establishment of Ad-hoc Committee on the Peaceful Uses of
Outer Space (UNCOPUOS)
 The Committee on the Peaceful Uses of Outer Space (COPUOS)
was set up by General Assembly in 1959 [resolution 1472 (XIV)]
to review the scope of international cooperation in peaceful uses
of Outer space.
 assisted by two subcommittees
A. the Scientific and Technical Subcommittee
B. the Legal Subcommittee set itself to this task.
 It remains the primary forum for discussion and negotiation of
international agreements relating to Outer space
 Soft Law (Resolutions/UNGA)
 Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space
 Principles Governing the Use by States of Artificial Earth Satellites
for International Direct Television Broadcasting
 Principles Relating to Remote Sensing of the Earth from Outer
Space
 Principles Relevant to the Use of Nuclear Power Sources in Outer
Space
 Declaration on International Cooperation in the Exploration and Use
of Outer Space for the Benefit and in the Interest of All States, Taking
into Particular Account the Needs of Developing Countries
Sources,
http://www.unoosa.org/oosa/en/SpaceLaw/gares/index.html
 Treaties/ Agreements
 UNCOPUOS drafted five international Treaties
 Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies the
(Outer Space Treaty),
 Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space the (Rescue Agreement),
 Convention on International Liability for Damage Caused by Space Objects
the (Liability Convention)
 Convention on Registration of Objects Launched into Outer Space the
(Registration Convention)
 Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies (Moon Agreement)

 Internationally all these Treaties are binding upon the contracting parties and
constitute the international legal regime for Outer space activities
 USES OF SPACE TECHNOLOGY
 Communication
Transfer of large quantum of information over great distances
TV, mobile phone & Internet, Connecting the people in the remote
areas - Ships or aircrafts / where wire communication is not
possible
 Remote Sensing
Study of earth and its resources
 Military purpose
 Tracking the movements of large groups of refugees
 Operations in the remote areas like dense forests
 Meteorology
 Information as to fires, effects of pollution, sand and dust storms,
snow cover, ice mapping, boundaries of ocean, energy flows,
hurricanes, tsunamis, typhoons, detection of changes in the Earth's
vegetation etc
 Detection of the ozone depletion & deforestation
 Navigation
Positioning of aircrafts, ships or other vehicles
 Global Positioning System
Helps in transportation, traffic control, as well as search and rescue
missions
 Collection of Solar Power
Solar power satellites - Renewable energy source with zero emission and
no waste
Receives more intense sunlight
 Telemedicine
Real-time consultation through video conferencing
 Beneficial for populations living in isolated communities and remote
regions
Tele-education
 Real-time online classes
 Space Research
International Space Station - Protein crystal studies
 Possible treatments for cancer, diabetes, emphysema and immune system
disorders etc.
TREATIES ON OUTER SPACE

 Before 1963 - Strong disagreement between U.S. and USSR

 US - Simplicity of GA resolutions
 Idea of free use of technical advantage - Recognized the
Soviet lead in 1963
 *Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies 1967 (Outer Space Treaty)
 - Impetus - Successful landing of Soviet spacecraft on moon
in 1966
 - Magna Carta of international space law
 - GA resolution 1962 (XVIII) of 1963 - Fundamental Principles
 - Initial enthusiasm - Most popular among all space treaties
 - Left the door open for further development
 Agreement on the Rescue of Astronauts, the Return of
Astronauts and the Return of Objects Launched into
Outer Space, 1968
 - Death of 3 US astronauts on board Apollo - I & one
USSR astronaut on board Soyuz - I in 1967
 - States to notify launching authority and the Secretary
General of UN about any emergency or unintended
landing
 - Search and rescue - Safe and prompt return
 - Search and return of space objects - Upon request of
launching authority
 - Launching authority must take effective steps to
eliminate possible danger of harm
 Convention on International Liability for Damage
Caused by Space Objects, 1972 (The Liability
Convention)
 - Likelihood of accidents, misfires, mishaps, danger to
aircrafts, environmental damage and damage to person
and property of other states
 - Absolute liability and liability based upon fault
 - Joint launching - Joint and several liability
 - Settlement of claim - Through diplomatic negotiations
 Convention on Registration of Objects Launched
into Outer Space, 1975 (Registration Convention)
 - Problem of identification of the space objects
 - Double registration
 Agreement Governing the Activities of States on the Moon
and Other Celestial Bodies, 1979 (Moon Agreement)
 - Conquest of moon on 21 July 1969 - Need for regulation of
human activities
 - Article 11 - CHM
 Legal Status of the UN Space Treaties
 Binding effect - Confined to the contracting parties
 Customary international law
 The Midway Approach
 Enthusiasm on treaties started to obliterate - Failure of Moon
Agreement
 No consensus - UN remained as a spectator
 * Principles on Direct Television Broadcasting, 1982
 No consensus in COPUOS - Adopted by GA
 Sovereign rights to be respected
 International Cooperation, state responsibility etc
 * Principles Relating to Remote Sensing of the Earth from Outer
Space, 1986
 17 years’ futile negotiation in UNCOPOUS - Adopted by GA
 South - National Sovereignty - Prior consent & control by sensed
state
 North - Freedom of use & dissemination
 Sensed states right to have access to data, international
cooperation & technical assistance, benefit & interest of all
countries etc
 * Principles Relevant to Use of NPS in Outer Space, 1992
 Cosmos 954 - 14 years’ debate
 NPS to be used only when essential
 To be used in sufficiently high orbits
 Safety assessment by launching state
 Risk of falling to be intimated to other states & UN SG
 State responsibility for national activities
 Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interest of All States,
1996
 Supplemental to Article I, OST
 Developed states - Skeptical about the information & technology
to be shared
 More oriented towards developed states’ interests - IPR
incorporated - Environment was not mentioned
 Nandasiri Jasentuliyana - “International space law has been
developed quickly out of an imaginative and innovative effort at
international legislation within United Nations. If not the United
Nations efforts, the world would have witnessed several major
conflicts between the states relating to space activities”
 Not perfect or complete - Role of political factors
 Non acceptance by the states
 Loose wordings of the Outer Space Treaty
 No progressive development after 1979
 Percolation into the municipal sphere
 IPR, financing, licensing private activities,
television broadcasting, information technology etc
 FUNDAMENTAL PRINCIPLES GOVERNING THE OUTER SPACE
 * PROVINCE OF ALL MANKIND
 Res communis - Belonging to all - No appropriation - Can be subject
to use - No sharing of benefit
 Art I, OST & Art 4, the Moon Agreement
 Decolonization after 1945 - Economic and political tensions
 Advent of outer space - Hope for the future of the states
 Carl Q. Christol - Starting point for legal reasoning
 Benefits derived - Must serve the whole of mankind
 No mention of formal institution - Voluntary sharing processes
 ‘Province’ - Connected with territory & responsibility over a
territory - Not with the property, resources or benefits derived
from such resources (heritage)
 Carl Q. Christol - “…the principle of the Common Heritage of
Mankind has significantly advanced the concepts which are
central to the province of mankind principle.”
 Article I - United States Senate - it was “the understanding of the
Committee on Foreign Relations that nothing in Article I,
paragraph 1, [of the Treaty] diminishes or alters the right of the
United States to determine how…it shares the benefits and results
of its space activities.”
 Soviet Union - The mankind provisions of the Treaty, including
Article 1, paragraph 1, have no “precise significance” and that “the
character and degree of participation of States in international
space projects [such as the sharing of benefits] depend, ultimately
on their will”
 NATIONAL NON-APPROPRIATION
 Came into existence along with the beginning of the space age
 Neither USSR nor US obtained the prior consent of international
community - No state protested
 Neither of the superpowers claimed sovereignty
 U. N. Doc. A/AC.105/C.2/SR.7 (21 August 1962) - USSR - No state
could claim sovereignty & freedom of exploration and use
 Airspace regime is not applicable - First come, first served can not
be applied - Colonization
 Article II, OST - Outer space including the moon and other
celestial bodies is not subject to national appropriation by claim of
sovereignty by means of use or occupation, or by any other means.
 Whether the term ‘national appropriation’ includes ‘individual /
private appropriation’?
 Is there a total ban on appropriation?
 Stephen Gorove - “…the subject of the article’s prohibition is
“national appropriation” by any means, including claims of
sovereignty, use or occupation, and not the exercise of sovereign
rights or prerogatives. The latter would appear to be subject to the
prohibition only if it would, in fact, amount national
appropriation”
 Ezra J. Reinstein - “Development in space must not occur in a
lawless environment. Some government must be sovereign over
each owned parcel of space real estate, so that rule of law is
applied. Without it, space would most likely be rife with crime
against property and person.”
 Misunderstanding of the concept of sovereignty with jurisdiction
 But state sovereignty is not completely alien to international space
law
 Manfred Lachs - States are barred from extending to and exercising
within the moon and other celestial bodies, those rights which constitute
attributes of territorial sovereignty
 Wilfred Jenks - “it is most desirable that sovereignty over unoccupied
territory in the Moon or in other planets or satellites should be regarded
as vested exclusively in the United Nations.”
 * FREEDOM OF EXPLORATION, USE AND SCIENTIFIC INVESTIGATION
 Article I, OST & Article 6, the Moon Agreement
 Closely connected to absence of sovereignty
 Neither absolute nor unqualified
 Benefit and in the interest of all countries
 In accordance with the international law
 Promote the friendly relations and cooperation among states
 Should not unlawfully interfere with the corresponding interests of other
 Equitable sharing of the benefits
 Peaceful uses
 Should not result in the disruption or harmful contamination of the
environment
 Restrictions are not exhaustive
 Article 6 - Collection and removal of the samples of minerals and other
substances
 At the disposal of the collecting state
 Mineral resources and other substances - Supporting the scientific
missions
 Exchange of scientific and other personnel on expeditions - No
obligation

 * COMMON HERITAGE OF MANKIND
 Law of the Sea origin
 17 August 1967 - Brain-child of Ambassador Arvid Pardo
 Not susceptible to a precise definition
 Belongs to everyone & shared jointly by all
 Developed countries - Neither realistic nor practical
 Concept of ‘Mankind’
 Wide interpretation - Present, past & future generation - Danger of
loosing its significance
 Question of representation of mankind - Can the mankind be new subject
of international law?
 Organization - Representing the great majority of the world population
 ‘Common Heritage’
 Heritage - Refers to some property or property interests
 Christopher C. Joyner - “Clearly, the concept of “heritage” conveys the
proposition that common areas should be regarded as inheritances
transmitted down to heirs, or as estates which by birthright are passed
down from ancestors to present and future generations. A CHM regime
would therefore designate that region as an international patrimony,
much the same as a piece of property or estate inherited by one
generation from its predecessor”
 Who are the predecessors of mankind?
 Did they posses any property right over CHM?
 Literal interpretation - Leads to absurdity and makes it an elusive and
impracticable concept
 Novel elements
 * Prohibition on Individual Appropriation
 * International Management System
 Equitable Sharing of Benefits
 * Measures to Protect and Preserve the CHM for Future Generation
 * Peaceful Uses of Resources
 CHM AND RES COMMUNIS
 Arvid Pardo - “the principle of ‘common heritage’ went beyond
that of res communis and the internationally accepted test of
‘reasonable use’. It implied something to be administered in
common and thus contained the notion of trust and of trustees,
although not necessarily that of property”
 Law of the Sea
 Grotius - Freedom of the Seas
 John Selden - Mare Clausum - Individual rights
 20 Century - Assertion of State Sovereignty
 UN Conferences on Law of the Sea
 UNCLOS - I, 1958.
 UNCLOS - II, 1960
 UNCLOS - III, 1973 - 1982
 CHM as a Principle Governing the Area - Article 136


 Part XI - Cooperation, equitable sharing, preference to
developing countries, protection of the marine environment
etc - Ceiling on the production of commodities
 International Seabed Authority - Strong authority to
organize, control & administer the activities
 Enterprise - A wing to explore & exploit resources
 US objections - Participated in the negotiation till 1980 -
Interest of private investors
 * No special status given to US in decision making
 * Financial payment to enterprise & mandatory transfer of
technology were opposed
 Failure to negotiate with other states - US voted against the
Convention
 Large part of the Convention, except Part XI, is considered as
part of customary international law
 Package deal - No scope for reservations
 The 1994 Agreement
 Intended to procure universal acceptance to UNCLOS
 US & other developed countries are given preference in the
decision making - Can block decisions by acting together
 Mandatory transfer of technology is dropped
 No limitation on the production from the sea-bed resources
 CHM has lost its original meaning & substance in law of the sea due
to the 1994 deathblow
 Weak authority
 Absence of technology in the developing countries
 Only developed states will exploit - No sharing of benefit

 Incorporation of CHM into Space Law
 OST was drafted three weeks after Malta’s proposal
 No mention of CHM - Some elements were found
 1969 - Samples from moon - New regime was found necessary

 1970 - Argentina’s proposal to COPUOS
 1973 - 79: Debate over the incorporation of CHM
 Article 11 - Applicable only to the moon & OCB
 The moon and its natural resources are the common heritage of
mankind, which finds its expression in the provisions of this
Agreement
 The moon is not subject to national appropriation by any claim of
sovereignty, by means of use or occupation, or by any other means
 Neither the surface nor the subsurface of the moon, nor any part
thereof or natural resources in place, shall become property of any
State, international intergovernmental or non-governmental
organization, national organization or non-governmental entity or
of any natural person. The placement of personnel, space vehicles,
equipment, facilities, stations and installations on or below the
surface of the moon, including structures connected with its
surface or subsurface, shall not create a right of ownership over the
surface or the subsurface of the moon or any areas thereof
 States Parties have the right to exploration and use of the moon
without discrimination of any kind, on the basis of equality and in
accordance with international law and the terms of this Agreement
 States Parties to this Agreement hereby undertake to establish an
international regime, including appropriate procedures, to govern
the exploitation of the natural resources of the moon as such
exploitation is about to become feasible
 In order to facilitate the establishment of the international regime
referred to in paragraph 5 of this article, States Parties shall inform
the Secretary- General of the United Nations as well as the public
and the international scientific community, to the greatest extent
feasible and practicable, of any natural resources they may discover
on the moon
 The main purposes of the international regime to be established
shall include:
 (a) The orderly and safe development of the natural resources of the
moon;
 (b) The rational management of those resources;
 (c) The expansion of opportunities in the use of those resources;
 (d) An equitable sharing by all States Parties in the benefits derived
from those resources, whereby the interests and needs of the
developing countries, as well as the efforts of those countries which
have contributed either directly or indirectly to the exploration of
the moon, shall be given special consideration
 All the activities with respect to the natural resources of the
moon shall be carried out in a manner compatible with the
purposes specified in paragraph 7 of this article and the
provisions of article 6, paragraph 2, of this Agreement
 Not accepted by the developed states
 Principle of Cooperation between States
 Freedom of access, exploration and use - Developing
countries can realize only when the developed countries
cooperate
 Extent of cooperation is not specifically mentioned
 Article I of OST - Question as to obligatory nature
 Article X, OST - Reasonable opportunity to observe the flight
 Obligation to intimate the activities to Secretary General &
public - “To the greatest extent feasible & practicable”
 Article XII - The stations, installations, equipment and space
vehicles on the moon and other celestial bodies - Open to all
states on the basis of reciprocity
 Astronauts Agreement - All possible cooperation between the
astronauts
 Rescue and return
 Article 10, Moon Agreement - persons in distress to be
sheltered in the stations, installations, vehicles and other
facilities
 Megumu Nakamura - “Almost all rules for international
cooperation in the Space Treaty, which includes many
conditions, would provide for not active but passive
cooperation in space activities between the states.”
 Maureen William - “International cooperation, however, has
not yet achieved the status of international customary law but
it is certainly moving in that direction.”
 Jurisdiction & Control
 State of Registry - Duty/right?
 Different from flag state jurisdiction in Law of the Sea
 Conflicting jurisdiction
 Ownership remains unaffected
 Astronauts as envoys of mankind
 Art. V, OST - Emergency assistance
 Astronauts of one state party to assist the astronauts of other
 Any natural phenomenon dangerous to the health of astronauts
found in the space to be informed to S-G
 Astronauts Agreement - Notification to the launching authority &
S-G
 Accident, distress, emergency or unintended landing - Assistance
to personnel - Launching state must cooperate, if necessary (Art. 2)
 Spacecraft in high seas / in a place beyond national jurisdiction -
On receipt of information, states parties in position to provide
assistance shall render assistance (Art. 3)
 Any personnel found - Safely and promptly returned to launching
authority (Art. 4)
 Parts of spacecraft - Return [Art. 5(2) & (3)] - Cost to be borne by
launching authority
 Who is an astronaut?
 Status of space tourists - Astronauts / personnel?
 LIABILITY AND REGISTRATION
 “Launching State”(i) A state which launches or procures the
launching of a space object;(ii) A state from whose territory or
facility a space object is launched;“State of registry” - A launching
State on whose registry a space object is carried Can there be a
change in the above status?
 Liability Regime
 OST - Art. VI & VII
 Liability Convention - Absolute & fault based
 Absolute liability - Damage on the surface of the earth & aircraft
in flight
 Question of damage to ships in the high seas & person / property
outside the ship in high seas
 Fault liability - Damage elsewhere from the surface of the earth to
spacecraft, persons or property on board
 Damage to third state by the space objects of the states due to
accident in outer space or airspace - Joint & several liability -
Absolute & fault
 Burden of compensation for damage to be apportioned according
to fault - In case of failure to establish the extent - Equal
apportionment
 Joint launching - Joint and several liability
 Exoneration from absolute liability - Gross negligence or act or
omission done with the intent to cause damage on the part of
claimant state
 No exoneration, if activities are not in conformity with
international law
 Art 5 (4), Astronauts Agreement - Effective steps on the request of
states in which objects are found - Launching state?
 Settlement of claim - Through diplomatic negotiations
 Not later than one year following the date of occurrence /
identification of launching state
 No obligation to exhaust local remedies
 Damage to be determined in accordance with the international law
& the principles of justice & equity - Restoration of condition
 Claims Commission - If not solved through diplomatic negotiations
 Decision - Binding, if so agreed - Otherwise recommendatory, but
to be considered in good faith
 Registration
 Identification of space objects - Jurisdiction & control, Rescue &
return, Liability & IPR
 ‘Space object’ - Includes component parts & launch vehicles &
their parts
 Registration in national registry & UN registry
 Shall furnish information to the S-G as to(a) Name of launching
State or States;(b) An appropriate designator of the space object or
its registration number;(c) Date and territory or location of
launch; (d) Basic orbital parameters;
 (e) General function of the space object
 Additional information to be given from time to time - Scope for
change in the registering state?
 Damage - Other States Parties to cooperate in identifying space
objects
 Cosmos 954
 USSR nuclear-powered naval surveillance satellite - Launched on
18th Sept 1977 - Orbit became erratic - US calculated the fall
 Secret meetings with USSR - Information about the Cosmos 954
reactor was given to US - US warned the NATO & OECD partners
regarding the fall & offered help to clean up
 24th January 1978 - Cosmos 954 crashed on the remote area in
Canada - US proposal of assistance - Accepted
 Canada asked USSR to provide information - USSR offered help -
Declined
 Cost - C $ 14 million to Canada + US $ 2 to 2.5 million to US - Bill of
6 million
 USSR blamed the fall on a collision in outer space - Canada blamed
on a faulty motor
 USSR declared the remains would cause minimal radiation hazard -
Limited local pollution - Canada found 2 pieces to be lethal nature
 Legal consequences
 (a) Duty to forewarn
 Canada - USSR had a duty to warn Canada & other potentially
endangered states as soon as the fact was discovered
 USSR - Only obligation to warn US - As per the calculations on the
basis of last visibility, satellite was expected to fall into sea in the
region of Aleutian Islands
 (b) Duty to provide information
 Canada - Cosmos 954 specification were not given, despite the
repeated request - Information must be publicly disclosed
 USSR - Duty to provide information is a more limited burden -
Only minimum degree of information needed for cleanup - Should
have been kept secretly by Canada - Intelligence gathering effort
by Canada by asking unnecessary questions
 (c) Duty to cleanup
 USSR - Jointly by the injured state & the launching state - USSR
offered assistance - Declined by Canada
 Canada - Injured state is entitled to choose the help from the
states
 (d) Duty to compensate for injury
 Canada demanded C$ 6 million - Total cost of cleaning
radioactive debris - No offer for repayment to US
 USSR - Compensation to be paid only for incremental costs
that the injured state incurred in repairing the injury
(Confined to physical injury) - C $ 3 million
 US - Legal conceptions were much closer to those of USSR,
except duty to cleanup - Free choice of state
 Canadian observers on US policy - Both the superpowers
were concerned about their space activities - US difference of
opinion regarding cleanup is because of self interest - US
eagerness to examine Cosmos 954 v. USSR’s concern to
prevent it
 Whether the USSR was liable under the Liability Convention?
 QUESTION OF STATE SOVEREIGNTY
 September 1959 - Luna 2 carrying Soviet flag had a hard landing on
the moon
 N. S. Kruschev - “We regard the launching of a space rocket and the
delivery of our pennant to the moon, as our achievement. And
when we say “our” we imply all the countries of the world, that is,
we imply that it is also your achievement and the achievement of all
people living on the earth.”
 United States - Law on the Implantation of the United States Flag
 Section 8 - the flag of the United States, and no other flag, shall be implanted
or otherwise placed on the surface of the moon, or on the surface of any
planet, by the members of the crew of any spacecraft making a lunar or
planetary landing as a part of a mission under the Apollo program or as a part
of a mission under any subsequent program, the funds for which are provided
entirely by the Government of the United States. This act is intended as
symbolic gesture of national pride in achievement and is not to be construed as
a declaration of national appropriation by claim of sovereignty
 Bogota Declaration
 3 December 1976 - Eight equatorial states - Claimed sovereignty
over the geostationary orbit
 Existence depends on its relation to gravitational phenomena
generated by the earth - Therefore part of earth
 Scarce resource - Need to obtain their permission for placement of
satellite
 GSO over high seas as CHM
 Best interest of all countries and all mankind - Prevents developed
states monopoly
 Failed to receive any legal standing in the COPUOS meetings - A. II
misinterpretation
 Soviet Delegate - “While the position of many states was based on a
desire to prevent any monopoly use of geostationary orbit,
attempts were being made by some to gain preferential rights.
Such an approach has no legal basis and did not correspond to the
interests of the international community in the use of OS”
 Placement of satellites in orbit - A posteriori / a priori models & A. II OST
 CLAIM OF PROPERTY RIGHTS
 Misinterpretation of Art II, OST & Art 11 (3) of the MA
 New phenomenon of selling the parts of the moon and other
celestial bodies
 Dennis Hope - Ownership of the extraterrestrial properties
by the individuals is not forbidden under Art. II
 First claim - Registration of claim in 1980 - US Governmental
Office for claim registers, the San Francisco County Seat -
Americans were the first to walk on the moon
 Copyrighted his work with the US Copyright Registry Office
 Sent notifications of his claim to the US and USSR
governments as well as to the United Nations - No answer
 None of the argument has legal standing
 Art. II prohibits individual appropriation - Not res nullius
 Not the first claimant - Frederick II in 1756
 Mere claim does not confer ownership right - Claim by the Masai
tribe that they own all cows in the whole world by divine
command - animus possidendi” (the intention to possess) + “corpus
possidendi” - (an act of physical nature giving effect to the intention
to take the thing)
 Recording of the document at San Francisco County Seat - Just a
proof that it was prepared and executed on or before the
recordation date - Does not confer title
 Absence of governmental and UN protest - Not expected for such
trivial claim
 Nemitz V. United States 2004 WL 3167042
 17 February 1996 - NEAR Shoemaker spacecraft
 March 2000 - Registration of claim in Archimedes Institute Internet
Registry - Ownership over Asteroid 433, Eros, and a volume of
space 50 km in altitude into space from every point on the surface
 12 February 2001 - NEAR Shoemaker landed on Eros
 Nemitz sent a letter to the Administrator of NASA -
Parking/storage fee - $20.00 for a period of one century
 NASA refused to pay - Archimedes Institute does not have legal
authority to confer property rights
Dr. Shailendra Kumar
 Oppenheim’s Old Definition:
 Law of Nations or International Law is a body of
customary and treaty rules which are considered legally
binding by States in their intercourse with each other
Criticisms:
 With regards to the subjects, only states have been regarded as
subjects of international law. But as we know that today, States are
not the only subjects of international law. International
Organisations, MNCs and to a limited extent, individuals are also
subjects of international law today
 As regards to sources, the definition says that only customs and
treaties are considered to be sources of international law. But if we
refer to Article 38 of the Statute of ICJ, we will find general
principles recognised by civilised nations is also an important source.
Besides there are subsidiary sources, which have been ignored in this
definition
 The expression ‘body of rules’ denotes that international law is static.
However, it is extremely dynamic in nature
 Prof. L. Oppenheim, “Law of Nations or International
Law is the name for the body of customary and
conventional rules which are considered legally binding
by the civilized states in their intercourse with each other
Criticisms:
 As regards to subjects, again, like Oppenheim, States have
been considered to be the only subjects of International
Law
 Usage of the adjective “civilised” before “State” creates
unnecessary confusion. What is meant by civilised? What
are the requirements of being a civilised State? No criteria
specified.
 Certain rules of conduct again gives an impression that
international law is static.
 Oppenheim’s Revised Definition:
 International Law is the body of rules which are legally
binding on States in their intercourse with each other.
These rules are primarily those which govern the relations
of States, but States are not the only subjects of
International Law. International Organisations and to so
some extent, individuals maybe the subjects of rights
conferred and duties imposed upon International Law.
Criticisms:
 Though this definition rectified certain criticisms levelled
against his older definition, his definition is still lacking.
What happens if any entity not recognised today as an
international law subject is provided with international
personality tomorrow? Then the definition will not be
adequate.
 Starke: that body of law which is composed for its greater part
of the principles and rules of conduct which States feel
themselves bound to observe, and therefore, do commonly
observe in their relations with each other, and which includes:
a. The rules of law relating to the functioning of international
institutions or organisations, their relations with each other,
and their relations with States and other individuals
b. Certain rules of law relating to individuals and non-state
entities so far as the rights and duties of such individuals and
non State entities are the concern of the international
community
 Schwarzenberger: International Law as the body of legal
rules which apply between sovereign states and such other
entities as have been granted international personality
 Brierly: International Law may be defined as the body of
rules and principles of action which are binding upon
civilised States in their relations with one another.
Who are the subjects of International Law?

 Individuals – Common people of any state are also

believed to be the subject of international law.
 International Organizations – It is an association of
states, established by a treaty between two or more states.
International Organizations too have a legal personality
and are considered to be the subject of international law.
For example, the United Nations
 Multinational Companies – They own and operate their
corporate entities in at least one other country aside from
the place where it was incorporated, therefore it is
established in more than one nation.
 In the past, states were the only subjects of the
international law but with the increase in the scope of the
international law, many other entities like the one
discussed above have been given international personality.
So now the question arises, whether they may be treated
as the subjects of international law and if they are given
the international personality, what is the criteria
determining their qualification to be the subject of the
international law. So there are different theories for
determining the same. The most prominent of them are:
Realist theoury
 According to this theory, only the Nation/States are considered
to be the subject of the international laws. It relies on the
principle that it is for the nation/state that the concept of
international law came into existence. These nations/states are
distinct and separate entities, capable enough to have their own
rights, obligations and duties, possessing the capability to
maintain their rights under international law.
 Prof. L. Oppenheim being the strong supporter of this theory
believes that as the law of nations is primarily a law between
the states, to that extent, subjects of the law should be nations
only.
 However, the theory has been criticized on the fact that it fails
to explain the case of slaves and pirates as under international
law, slaves have been conferred with some rights, while the
pirates are treated as enemies of mankind.
Fictional Theory

 Supporters of this theory suggest that the subjects of

international law are the individuals only and that legal order is
for the well-being of the individuals. They firmly believe that
the Nation/state are nothing but aggregate of individuals as
subjects.
 Prof. Kelsen is the supporter of the theory and believes that the
duties of the states are ultimately the duty of the individuals of
the states and there is no difference between the international
law and municipal law and have been made to be applicable on
the individuals only.
 Even if the theory of Kelsen appears logically sound, it is seen
that the international law’s primary concern is with the rights
and duties of the states.
Functional Theory
 Both the Realist and the Fictional Theory take on an extreme
course of opinion, but, according to Functional Theory, neither
state nor individuals are the only subjects. They both are
considered to be the subjects of modern International law as
they both have recognized rights, duties and obligations. Along
with them, several other entities, like African Union, have been
accepted as subjects of international law.
 In the present times, individuals have been conferred with
certain rights and duties, for example, International Covenant
on human rights. Moreover, it is agreed that international
organisations are also the subjects of international law. The
International Court of Justice held that the United Nation is an
international person and is a subject of international law,
capable of having rights and duties.
Is International Law really a law?

 It is one of the most controversial questions that has been

debated and on which jurist’s opinions hugely differ. One
view considers International law not a true law, rather, a
code of rule of conduct backed by morality. On the other
hand, International law is considered to be a true law and
is regarded as a law, similar to that of ordinary laws of a
state, binding upon the citizens.
Austin’s View – International law is not a true law

 According to Austin, law is the command of the sovereign

punished by sanctions in case the command is violated by the
individual. There must be a legislative authority enacting the
rule of conduct and enforcing physical sanction. So based on
what he said, it can be concluded that any rule which is not
enacted by any superior or legislative authority, cannot be
regarded as a law and moreover, if laws are violated, sanctions
must be imposed.
Based on that, it can be said that rules are only morally and
ethically valid if they aren’t issued by any sovereign authority.
If we apply this theory to International law, we will see there is
no legislative power over the society, based on which Austin
concluded that International laws are merely based on ethics
and morality and are not true law.
Oppenheim’s View – International law

 According to him, laws are nothing but a body of rules for

human conduct within a community, which can be
enforced by an external power if there’s a common
consent of the community for the same. Based on what he
said, we can conclude that, firstly, there must be a
community, secondly, a body of rule of conduct governing
the community must be there and thirdly, common consent
among the community for the rules to be enforced power
must be present. From this, we can conclude that it’s not
necessary that rules should be enacted by a legislative
authority within the community for them to be legally
binding.
Relationship between international law
&
Municipal law
By
Shailendra Kumar
What is International Law
OPPENHEIM defines International Law as, "Law of Nation
or International Law is the name for the body of
customary and conventional rules which are considered
legally binding by civilized states in their relation with
each other, within a community which by common
consent of this community shall be enforced by external
power".
International Law has been defined by J.G. Starke as "that
body of Law which is composed for its greater part of the
principles and rules of conduct which states feel
themselves bound to observe, and therefore, do commonly
observe in their relations with each other."
What is International Law
According to the Black’s Law Dictionary :
"The legal system governing the relationship between
nations; more modernly the Law of International
relations, embracing not only nations but also such
participants as International organizations and
individuals".

Thus International Law is a body of rules and principles

which regulate the conduct and relations of the members of
international community.
What is Municipal Law
 Municipal Law is the national domestic or internal law of a
sovereign state defined in opposition to international law.
 Municipal law includes many levels of law; not only national
law but also state, provincial, territorial, regional or local
law.
 Municipal law is the law specific to a particular city or
country and the government bodies within those cities or
countries.
 Thus Municipal Law is the acts made by the
legislature or the Law making authority of a state,
applicable to that state alone.
Difference between International law
and Municipal law

 International Law is largely but not altogether

concerned with relation among states.

Whereas Municipal Law controls relations between

individuals within a state and between individuals and
the state.
Difference between International law
and Municipal law
 International Law, on the other hand, regulates
relations between the member States of the Family of
Nations.
 Municipal Law regulates relations between the
individuals under the sway of the respective State and
the relations between this State and the respective
individuals.
Difference between International law
and Municipal law

 Law of Nations is a Law not above, but between

Sovereign States.

 Whereas Municipal Law is a Law of a Sovereign over

individuals subjected to his way.
Relationship between International law
and Municipal law
 Theories:
 (1) Monism
 (2) Dualism
 (3) Specific Adoption Theory
 (4) Transformation Theory
 (5) Delegation Theory
MONISM

 The exponents of this theory emphasise the scientific analysis

of the internal structure of law.
 Monists hold that International Law and State Law
share a common origin-namely Law.
 According to Monists, law is a unified branch of knowledge,
no matter whether it applies on persons or other entities.
MONISM
 According to Monism, International Law is directly
applicable in the National legal order. There is no need
for any Municipal implementing legislation;
International Law is immediately applicable within
National legal systems unlike Dualism, without any
incorporation or transformation.
 Monistic Theory was developed by German scholars
namely Moser, Hegel, Bergbohm, Zorn, Wenzel in late
18th and early 19th centuries. Wright, Kelsen and
Duguit are some of the prominent exponents of
monism.
DUALISM
 Dualism theory was developed by a German scholar
Triepel and an Italian scholar Anzilotti.
 In the view of the dualistic writers, international law
and state law are two separate law. The important
principle of Dualism is that, International Law and
Municipal Law are two separate and distinct orders, in
their objects and spheres of operation, such that the
norms of one would not operate within the realm of the
other without a positive act of reception or
transformation, as the case may be.
DUALISM
 The International Law and Municipal Law are two
entirely different things and the International Law can
never be applied in the state without incorporating or
transforming it into Municipal Law.
 The subject of the Municipal Law is primarily
individuals and groups, and that of International Law
is states. The main function of Municipal Law is
regulating internal functioning of the state, relation
between the state and the individual, and function of
International Law is to supervise the relations between
states.
Specific Adoption Theory
 According to the exponents of this theory, international law
cannot be directly enforced in the field of state law. In order to
enforce it in the field of Municipal Law, it is necessary to make its
specific adoption.
 International Law can be applied in the field of Municipal Law
only when Municipal Law either permits it or adopts it
specifically.

 For example, International Covenant on Civil and Political

Rights and International Covenant on Economic, Social and
Cultural Rights have been adopted in India under
the Protection of Human Rights Act, 1993
Transformation Theory
 According to the exponents of this theory, for the application
of international law in the field of municipal law, the rules of
international law have to undergo transformation.
 International Law undergoes transformation as it
spreads universally. Unless transformed, it cannot be
applied to Municipal Law. States incorporate treaties
and norms into their Municipal laws by specific
"transformational" devices.
Delegation Theory
 According to this theory, the constitutional rule of
international law permit each State to determine as to how
international treaties will become applicable in the field of
state law.
 International Law delegates the rule-making power to
each State accordance with the procedure and system
prevailing in each state in accordance with the
Constitution and Rules of the Treaty or Convention
that member states sign and agree upon.
Concluding Remarks
 International Law is no longer law between nations, it
also embraces individuals. International Law gradually
headed towards a human commonwealth
encompassing individuals, states, and other aggregates
cutting across state boundaries.
 Dr. Shailendra Kumar
Assistant Professor, Symbiosis law School Hyderabad
 Aviation/Space Law

Private
Public International
Domestic Law International
Aviation/space Law
Aviation Law
 1783 - First hot-air balloon constructed by Montgolfier
brothers
 1784 - Paris police decree
 1785 - Crossing the English Channel
 1822 - First case of tort by aviation in US
 1865 - Aerial Navigation company
 1889 - Conference on air law at Paris
 1889 - Hague Conference - Prohibition on discharge of
projectiles from balloons
 1902 - Draft code of international air law
 1903 - First engine driven flight
 1907 - Hague Peace Conference - Reluctance of states
 1910 - Paris Conference - Code of international air law -
Not finally agreed
 National legislations
 First World War - Widespread military use of aircrafts
 Huge increase in aero planes - Britain 12 (1914) to 22,000
(1918)
 22nd March 1919 - First regular service for international
transport by air (Paris & Brussels)
 Paris Peace Conference 1919 - Convention rules on flight of
aircrafts - US did not ratify
 1926 - Ibero-American Convention
 1928 - Pan-American Aviation Convention
 1929 - Warsaw Convention
 1933 - Rome Convention to deal with surface damage
 II World War - Flying was restricted all over the world
 1944 - Chicago Conference - 52 delegations
 6 May 1947 - ICAO started functioning (Montreal)
 Liability regime strengthened
 Norms to prevent crimes on board
 Freedom v. Sovereignty
 Should it be the public international law or conflict of laws?
 Four theories
 Absolute freedom - Fauchille
 Lower territorial airspace & higher free airspace
 Complete sovereignty over airspace
 Sovereignty subject to innocent passage
 First World War - Importance of aerial navigation &
potential danger to subjacent state & its inhabitants
 Paris Convention 1919 - “…every Power has complete and
exclusive sovereignty over the airspace above its territory”
 Reaffirmed in Chicago Convention 1944
 So international conventions in some cases have created
public international law and in other cases uniform rules
designed for incorporation in the municipal law
 THE CHICAGO CONVENTION 1944 & FUNDAMENTAL
PRINCIPLES
 1 Nov. 1944 - Britain-US initiative - Allied & neutral powers
called
 American trend - Freedom of competition
 British trend - International Organization
 Canadian trend - Elaborate version of British
 Australian & New Zealand trend - Internationalization of major
airlines
 Sovereignty of states reaffirmed - 52 states signed
 Applicable to only civil aircrafts
 Freedom of movement - Transit Agreement & Transport
Agreement
 Freedom to fly over
 Freedom to land for non-traffic purposes (technical landing)
 Freedom to carry the passengers & cargo from the territory of
nationality of aircraft to a foreign state
 Freedom to take on passengers & cargo destined to the state
of nationality
 Freedom to carry passengers & cargo between two foreign
states
 Art. 9 - Ban or restrictions to fly over for reasons of
military necessity or public safety
 Scheduled and Non-Scheduled Air Traffic
 Scheduled flights - According to published timetable - Art.
6 authorization
 Non-scheduled - Art. 5 freedom & flexibility
 Increased non-scheduled flights - Norms to regulate
 Agreement on Commercial Rights of Non-scheduled Air
Services in Europe 1956 - States’ duty to admit on certain
occasions (Art. 2)
 Public international aviation law
 France called Conference in 1910, identified issues of aviation
 Paris Convention, Convention relating to Regulate Aerial Navigation 1919,
Recognition of air space of respective State
 Chicago Conference 1944
 Private International Aviation law
 In 1925 French called first conference on private International
Law, adopted draft Convention and CITEJA
 Second International private Air law Conference was called
1929, Warsaw Convention 1929
 Hague Protocol 1955
 Montreal Convention 1999
 India is party to all important treaties on Int. civil aviation and
to implement most of these treaties it also made enabling
legislations which include:
 Air Ships Act 1911
 Aircraft Rules (Custom)1920
 Aircraft Act, 1934
 Aircraft Rules, 1937
 Air Corporations Act 1953
 Aircraft Public Health Rules 1954
 Carriage by Air Act, 1972
 to provide for the transport requirements of foreign
commerce
 To promote tourism sector
 to provide employment and earn foreign exchange
 to meet the needs of the postal system
 to create the conditions for a viable, healthy air
transport sector
 to aid in national development
 to serve national defence.
 to meet disaster assistance needs etc.
 Legislative component ( making of laws, policies,
rules and regulations, and these rules for granting or
denying of permission etc.)
 Organizational Component, Ministry of Civil
Aviation and various other agencies like DGCA, Air
India, Indian, other private airlines and AAI provides
infrastructure
 Tokyo Convention 1975
 Anti-Hijacking Act, 1982
 Unlawful Seizure against the Safety of Civil Aviation 1982
 Air Corporations (Transfer of Undertakings and Repeal) Act 1994
 The Aircraft (Demolition of obstructions caused by Buildings and
Trees etc.) Rules, 1994 Airport Authority Act 1994
 The Aircraft (Carriage of Dangerous Goods) Rules, 2003
 The AERA 2008
 Carriage by Air Act (Amended) 2009
 Domestic Implementation of Annexure 17 to Chicago convention
 2014 Notification superseding the 1973 Notification
 Application of Consumer Protection Act
 The Ministry of Civil Aviation ( MCA) is the nodal Ministry
responsible for the formulation of policy and regulation of civil
aviation in India.
 The MCA oversees the planning and implementation of schemes for
the growth and expansion of civil air transport, airport facilities, air
traffic services and carriage of passengers and goods by air.
 The following are the principal regulatory authorities functioning under
the authority of the MCA:
 DGCA
 AAI
 BCAS
 Metrology
 Airlines
 Scheduled operators
 non scheduled operators
 The Directorate General of Civil Aviation ( DGCA) enforces civil air
regulations, regulates air transport services, air safety and airworthiness
standards.

 The DGCA draws its authority from the Aircraft Act and Rules and
performs functions like issuance of licences, approvals, certificates and
permits.

 Over all control of civil aviation in India

 Power to issue directions
 Power to Issue CAR
 Power make specifications
 Power to Issue licenses- persons, aircrafts, aerodromes,
 Power to approve schedules
 Power to issue investigate Accidents and incidents
 Administration Directorate
 Aerodrome Standards Directorate (AD)
 Air Safety Directorate (DAS)
 Air Transport Directorate (AT)
 Airworthiness Directorate (DAW) (which is also
responsible for registering drones in India)
 Flight Standards Directorate (FSD)
 Information & Regulation Directorate (DRI)
 Aircraft Engineering Directorate (AED)
 Directorate Of Flying Training (DFT)
 Medical Section
 Directorate of Training & Licensing (DTL)
 Directorate of Airspace and Air Navigation Services
Standards (ANSS
 The Airports Authority of India or AAI is a statutory body (created through the
Airports Authority of India Act, 1994) working under the Ministry of Civil
Aviation is responsible for creating, upgrading, maintaining and managing civil
aviation infrastructure in India.
 It provides Communication Navigation Surveillance / Air Traffic Management
(CNS/ATM) services over Indian airspace and adjoining oceanic areas.
 It also manages a total of 126 Airports, including 11 International Airports, 11
Customs Airports, 89 Domestic Airports and 26 Civil enclaves at Military
Airfields.
 AAI also has ground installations at all airports and 25 other locations to
ensure safety of aircraft operations.
 AAI covers all major air-routes over Indian landmass via 29 Radar installations
at 11 locations along with 700VOR/DVOR installations co-located with
Distance Measuring Equipment (DME).
 52 runways are provided with Instrument landing system (ILS) installations
with Night Landing Facilities at most of these airports and Automatic Message
Switching System at 15 Airports
 Why AERA?
 Airports Economic Regulatory Authority (AERA) of India Act was passed in 2008,
to establish an independent aeronautical regulatory authority.

 The authority was to work for the protection of the interest of airports, airlines and
passengers and also regulate traffic for aeronautical services.
 Aeronautical services primarily include navigation, surveillance and supportive
communication for air traffic management and landing facilitation.
 To determine the amount of the Development Fees in respect of major airports.
 To determine the amount of the Passengers Service Fee levied under rule 88 of the
Aircraft Rules, 1937 made under the Aircraft Act, 1934.
 To monitor the set Performance Standards relating to quality, continuity and
reliability of service as may be specified by the Central Government or any
authority authorized by it in this behalf.
 To perform such other functions relating to tariff, as may be entrusted to it by the
Central Government or as may be necessary to carry out the provisions of this Act .
 Development of space Law
 Space age began when USSR launched its first
satellite, Sputnik-1 on 4 October 1957.
 USA’s launch of Explore I
 UNGA RES 1348 (XIII) “Question of the
Peaceful Use of Outer Space” (13 December
1958)
 Recognised common interest of mankind in
outer space for peaceful uses of outer space
 Establishment of Ad-hoc Committee on the
Peaceful Uses of Outer Space (UNCOPUOS)
  The Committee on the Peaceful Uses of Outer
Space (COPUOS) was set up by General Assembly
in 1959 [resolution 1472 (XIV)] to review the
scope of international cooperation in peaceful
uses of Outer space.
 assisted by two subcommittees
A. the Scientific and Technical Subcommittee
B. the Legal Subcommittee set itself to this task.
 It remains the primary forum for discussion and
negotiation of international agreements relating
to Outer space
 Soft Law (Resolutions/UNGA)
 Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space
 Principles Governing the Use by States of Artificial Earth
Satellites for International Direct Television Broadcasting
 Principles Relating to Remote Sensing of the Earth from
Outer Space
 Principles Relevant to the Use of Nuclear Power Sources in
Outer Space
 Declaration on International Cooperation in the
Exploration and Use of Outer Space for the Benefit and in
the Interest of All States, Taking into Particular Account
the Needs of Developing Countries
Sources,
http://www.unoosa.org/oosa/en/SpaceLaw/gares/index.h
tml
 1 Nov. 1944 - Britain-US initiative - Allied &
neutral powers called
 American trend - Freedom of competition
 British trend - International Organization
 Canadian trend - Elaborate version of British
 Australian & New Zealand trend -
Internationalization of major airlines
 Sovereignty of states reaffirmed - 52 states
signed
 Applicable to only civil aircrafts
 Freedom of movement - Transit Agreement &
Transport Agreement
 The International Air Services The International Air Services
Transit Agreement Transit Agreement, commonly known
as the , commonly known as the Two Freedoms
agreement, was conclu Two Freedoms agreement, was
concluded and opened for signature. ded and opened for
signat
 The International Air The International Air Transport
Agreement Transport Agreement, commonly known as the
Five , commonly known as the Five Freedoms agreement,
was also conc Freedoms agreement, was also concluded
and opened for signature. luded and opened for signature.
. . . The number of accepting states re The number of
accepting states reached a maximum of 17, but it i ached
a maximum of 17, but it is now declining, 4 having
denoun declining, 4 having denounced the agreement
 A standard form of bilateral agreement standard form of
bilateral agreement for the exc for the exchange of air
routes was hange of air routes was prepared and
recommended by the Co prepared and recommended by
the Conference as part of its final nference as part of its
final act
 An Interim Agreement on International Civil Aviation Interim
Agreement on International Civil Aviation was completed and
ompleted and opened for signature. It came into effect on June
6, 1945, there opened for signature. It came into effect on June
6, 1945, thereby providing an interim basis for ma providing an
interim basis for many phases of international civi ny phases of
international civil aviation and l aviation and a constitution for
the Provisiona a constitution for the Provisional International Civil
Aviation l International Civil Aviation Organization. Organization.
The interim agreement was replaced The interim agreement was
replaced when the convention came into when the convention
came into effect on April 4, 1947.
 Finally, a world Finally, a world -wide common basis was
established for the technical and wide common basis was
established for the technical and operational aspects of
international civil aviation
 Territorial Sovereignty. Territorial Sovereignty. Every S
Every State has, to the exclusion of all tate has, to the
exclusion of all other States, the unilateral and ab
other States, the unilateral and absolute right to
permit or den solute right to permit or deny entry
into the area recognized as its territory and similar
righ entry into the area recognized as its territory and
similar right to control all movements within such
territory. control all movements within such territory.
 National Airspace. The territory of a sovereign State is
three The territory of a sovereign State is three
dimensional, including wit dimensional, including
within such territory the airspace above ch territory
the airspace above its national lands and its intern
national lands and its internal and territorial waters
 Freedom of the Seas. Navigation on the surface of the high
seas Navigation on the surface of the high seas and flight
above such seas are free for the use of all
 Nationality of Aircraft. Aircraft have the characteristic of
Aircraft have the characteristic of nationality similar to that
deve nationality similar to that developed in maritime law
applicable loped in maritime law applicable to ships. Thus
aircraft have norm ships. Thus aircraft have normally a
special relationship to a ally a special relationship to a
particular S particular State which is entitled to make
effective the privile tate which is entitled to make effective
the privileges to which such aircraft may be entitled and
such State is also to which such aircraft may be entitled
and such State is also reciprocally responsible for the
reciprocally responsible for the international good conduct
of s international good conduct of such aircraft
 Art. 9 - Ban or restrictions to fly over for
reasons of military necessity or public safety
 Scheduled and Non-Scheduled Air Traffic
 Scheduled flights - According to published
timetable - Art. 6 authorization
 Non-scheduled - Art. 5 freedom & flexibility
 Increased non-scheduled flights - Norms to
regulate
 Agreement on Commercial Rights of Non-
scheduled Air Services in Europe 1956 -
States’ duty to admit on certain occasions
(Art. 2)
 Cabotage - Art. 7
 First Freedom • The specific conditions of the
agreement, such as establishing the frequency of
flights, that are determined through bilateral
agreements between any two countries. • First
Freedom – The right to fly and carry traffic over the
territory of another partner to the agreement without
landing. (Almost all countries are partners to the
Convention but some have observed this freedom
better than others. When the Korean airliner lost its
way over Soviet air space a few year ago and was shot
down, the Soviet Union (among other offenses!)
violated this First Freedom.). However, some would
consider this as his right of self protection. Overfly.
 Second Freedom – The right to land in those
countries for technical reasons such as
refueling without boarding or deplaning
passengers. Technical Stop
 Third Freedom – The right of an airline from
one country to land in a different country and
deplane passengers coming from the airline’s
own country. Off Load passengers or goods
 Fourth Freedom – The right of an airline from
one country to land in a different country and
board passengers traveling to the airline’s
own country. Upload passengers or goods.
 Fifth Freedom – This freedom is also
sometimes referred to as ‘beyond rights‘. It is
the right of an airline from one country to
land in a second country, to then pick up
passengers and fly on to a third country
where the passengers then deplane. An
example would be a flight by American
Airlines from the US to England that is going
on to France. Traffic could be picked up in
England and taken to France
 Sixth Freedom – The right to carry traffic from
one state through the home country to a third
state. Example: traffic from England coming
to the US on a US airline and then going on to
Canada on the same airline
 Seventh Freedom - The right to carry traffic
from one state to another state without going
through the home country. Example would be
traffic from England going to Canada on a US
airline flight that does not stop in the US on
the way
 Eighth Freedom – This is also called cabotage
and almost no country permits it. Airline cabotage
is the carriage of air traffic that originates and
terminates within the boundaries of a given
country by an air carrier of another country. An
example of this would be an airline like Virgin
Atlantic Airways operating flights between Chicago
and New Orleans
 Article 1
 1. This Convention applies to all international carriage of persons, luggage or
goods 4 performed by aircraft for reward. It applies equally to gratuitous
carriage by aircraft performed by an air transport undertaking
 2. For the purposes of this Convention the expression “international carriage”
means any carriage in which, according to the contract made by the parties, the
place of departure and the place of destination, whether or not there be a break
in the carriage or a transhipment, are situated either within the territories of two
High Contracting Parties, or within the territory of a single High Contracting
Party, if there is an agreed stopping place within a territory subject to the
sovereignty, suzerainty, mandate or authority of another Power, even though
that Power is not a party to this Convention. A carriage without such an agreed
stopping place between territories subject to the sovereignty, suzerainty,
mandate or authority of the same High Contracting Party is not deemed to be
international for the purposes of this Convention.
 3. A carriage to be performed by several successive air carriers is deemed, for
the purposes of this Convention, to be one undivided carriage, if it has been
regarded by the parties as a single operation, whether it had been agreed upon
under the form of a single contract or of a series of contracts, and it does not
lose its international character merely because one contract or a series of
contracts is to be performed entirely within a territory subject to the
sovereignty, suzerainty, mandate or authority of the same High Contracting
Party
 THE representatives of sixty-one1 governments participated
in the drafting and enactment of the Convention on
Offenses and Certain Other Acts Committed on Board
Aircraft at the International Conference on Air Law
convened at Tokyo in August-September 1963 under the
auspices of the International Civil Aviation Organization
(ICAO), a specialized agency of the United Nations.
 .Article 21 of the Tokyo Convention provides that it shall
come into force and effect upon the deposit of twelve
instruments of ratification. It is therefore likely that the
Convention will not long remain an inert document, a fate
which has befallen other conventions dealing with
international air law.
 Although the first hijack attempt on a commercial aircraft
occurred in 1931.
 The first real wave of hijackings began around 1958 when
individuals hijacked aircraft as a means to divert them from
Cuba to the United States.
 After 1961, the direction of the hijackings reversed and
there was a wave of diversions of aircraft from the United
States to Cuba. To prevent aircraft diversions, the Legal
Committee of the ICAO met in Rome in 1962 to draft a
convention on the subject of crimes committed on board an
air-craft in international flight.
 This draft was submitted to the States of the world for
comment and diplomatic conference was convened in 1963
for final approval
 The Convention aims to provide safety to aircraft, protection of life and
property on board aircraft and generally to promote the security of civil
aviation.
 A wide range of powers are granted to the aircraft commander, members of the
crew and passengers with the sole aim to constitute international unified rules
which would give the commander of every aircraft in the world the power to
preserve good order and discipline on board the aircraft and to take all
preventive measures or measures of restraint necessary to that end.

 This power can be considered as a means to secure the maintenance of law and
order on board the aircraft: the power to arrest, disembark and deliver to
competent authorities of contracting states, any person committing or
attempting to commit an offence or any act which jeopardizes the safety of
aircraft, persons or goods on board, or threatens to create disorder on board. As
a corollary, the Convention grants a limited measure of immunity to the
persons acting under the circumstances and conditions described in the
Convention.
 Article 3 of the Tokyo convention, 1963
 The State of registration of the aircraft is competent to exercise jurisdiction
over offenses and acts committed on board.
 Each Contracting State shall take such measures as may be necessary to
establish its jurisdiction as die State of registration over offenses committed on
board aircraft registered in such State.
 This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law.
 Article 4 says that
 A Connecting States which is not the State of Registration may not interfere
with an aircraft in flight in order to exercise its criminal jurisdiction over an
offense committed on board except in the following cases:
A. The offense has effect on the territory of such State;
B. The offense has been committed by or against a national or permanent
resident of such State;
C. The offense is against the security of such State;
D. The offense consists of a breach of any rules or regulations relating to the
flight or maneuverings of aircraft in force in such State;
E. The exercise of jurisdiction is necessarily to ensure the observance of any
obligation of such State under a multilateral international agreement.
 Article 5
 1. The provisions of this Chapter shall not apply to offences and acts
committed or about to be committed by a person on board an aircraft in
flight in the airspace of the State of registration or over the high seas or
any other area outside the territory of any State unless the last point of
takeoff or the next point of intended landing is situated in a State other
than that of registration, or the aircraft subsequently flies in the
airspace of a State other than that of registration with such person still
on board.
 2. Notwithstanding the provisions of Article 1, paragraph 3, an aircraft
shall for the purposes of this Chapter, be considered to be in flight at
any time from the moment when all its external doors are closed
following embarkation until the moment when any such door is opened
for disembarkation. In the case of a forced landing, the provisions of
this Chapter shall continue to apply with respect to offences and acts
committed on board until competent authorities of a State take over the
responsibility for the aircraft and for the persons and property on board.
 The aircraft commander, members of the crew and, in
specific circumstances, even passengers on board, are
empowered to prevent the commission of such acts and
to disembark the person concerned. The aircraft
commander may also disembark the offender or, if the
offence is serious, deliver him to the competent
authorities of a Contracting State when the aircraft
lands. The Convention protects the aircraft commander
and any crew member or passenger assisting him in
imposing the measures he finds necessary from any
proceedings in respect of actions taken by them
 Article 11
 1. When a person on board has unlawfully committed by
force or threat thereof an act of interference, seizure, or
other wrongful exercise of control of an aircraft in flight or
when such an act is about to be committed, Contracting
States shall take all appropriate measures to restore control
of the aircraft to its lawful commander or to preserve his
control of the aircraft.
 2. In the cases contemplated in the preceding paragraph, the
Contracting State in which the aircraft lands shall permit its
passengers and crew to continue their journey as soon as
practicable, and shall return the aircraft and its cargo to the
persons lawfully entitled to possession.
 The State of registration of the aircraft is competent to
exercise jurisdiction over offences and acts committed on
board. Each Contracting State is obliged to take the
necessary measures to establish its jurisdiction as the State
of registration. The Convention does not eliminate existing
or future jurisdiction in States other than the State of
registration. A Contracting State which is not the State of
registration may not interfere with an aircraft in flight in
order to exercise its criminal jurisdiction over an offence
committed on board except in certain cases, for instance,
the offence has been effected in the territory of the State
overflown, the offence has been committed by or against a
national or permanent resident of that State, and the offence
is against the security of that State
 Article 1
 Any person who on board an aircraft in flight:
 (a) unlawfully, by force or threat thereof, or by any other form of
intimidation, seizes, or exercises control of, that aircraft, or attempts to
perform any such act, or
 (b) is an accomplice of a person who performs or attempts to perform
any such act commits an offence (hereinafter referred to as "the
offence").
 The Convention defines the act of unlawful seizure of aircraft, and the
Contracting States have undertaken to make such an offence punishable
by severe penalties. Under the provisions of The Hague Convention a
State is obliged, whether or not it is the State of registration, to take
such measures as may be necessary to establish its jurisdiction over the
offence in the case where the alleged offender is present in its territory
and it does not extradite him. If there is no extradition treaty between
the States concerned and the offender is in the territory of a Contracting
State and that State refuses to extradite the offender, then it must
submit the case to its competent authorities for the purpose of
prosecution under its criminal law.
 The offence established by the Hague Convention requires
the seizure of, or other exercise of control over, an aircraft
in flight, or an attempt to do so. It can be committed only by
a person on board the aircraft. Similarly, the conduct of an
accomplice must also take place on board.
 These limitations restrict the scope of the offence. In
particular they exclude from its ambit cases where force is
applied from outside the aircraft.
 Moreover, the offence under the Hague Convention does
not extend to acts of sabotage and destruction of aircraft.
Unhappily, such conduct has occurred frequently
 1. Any person commits an offence if he unlawfully and inten
tionally:
 a) performs an act of violence against a person on board an
aircraft in flight if that act is likely to endanger the safety of that
aircraft; or
 (b) destroys an aircraft in service or causes damage to such an
aircraft which renders it incapable of flight or which is likely to
endanger its safety in flight; or
 (c) places or causes to be placed on an aircraft in service, by any
means whatsoever, a device or substance which is likely to
destroy that aircraft, or to cause damage to it which renders it
incapable of flight, or to cause damage to it which is likely to
endanger its safety in flight; or
 (d) destroys or damages air navigation facilities or interferes with
their operation, if any such act is likely to endanger the safety of
aircraft in flight; or
 (e) communicates information which he knows to be false,
thereby endangering the safety of an aircraft in flight
 2. Any person also commits an offence if he:
 (a) attempts to commit any of the offences mentioned in paragraph 1 of this
Article; or
 (b) is an accomplice of a person who commits or attempts to commit any such
offence
 Article 6. 1. Upon being satisfied that the circumstances so warrant, any
Contracting State in the territory of which the offender or the alleged offender
is present, shall take him into custody or take other measures to ensure his
presence. The custody and other measures shall be as provided in the law of
that State but may only be continued for such time as is necessary to enable
any criminal or extradition proceedings to be instituted.
 2. Such State shall immediately make a preliminary enquiry into the facts.
 3. Any person in custody pursuant to paragraph 1 of this Article shall be
assisted in communicating immediately with the nearest appropriate
representative of the State of which he is a national.
 4. When a State, pursuant to this Article, has taken a person into custody, it
shall immediately notify the States mentioned in Article 5, paragraph 1, the
State of nationality of the detained person and, if it considers it advisable, any
other interested State of the fact that such person is in custody and of the
circumstances which warrant his detention. The State which makes the
preliminary enquiry contemplated in paragraph 2 of this Article shall promptly
report its findings to the said States and shall indicate whether it intends to
exercise jurisdiction.