Introduction to customary international law
International law comprises of treaties, conventions and international customary law. Customary International law is established through the action and responsibility that states take out of sense of legal obligation, international law changes through changing treaty regime, as the world changes so as laws that govern international relations, treaties and conventions. Customary International law as in rescent years has played a sallient and continuous role in the evolution of the law of the sea.
In contrast to treaties, which are written and more easily researched and cited to, the reasoning behind customary international law can be harder to discern. The prevailing Nigerian view of determining and interpreting international law is very similar to other widely accepted methods of international jurisprudence. A comparison of the international view and the Nigerian view illustrates the similarities.
The Nigerian Constitution includes treaties as part of it’s supreme law which is referred to as autochthonous(as reffered to during the time of it’s drafting), although international customs changes overtime it is still biding 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.”
Albeit, a particular and dogmatic practice of a state does not mean other sovereign states should follow it to in order to qualify it as custom, for it to be a custom it must be generally and consistently practiced by representative group of states capable of participating in it practice. The reason is to eliminate every form of accidental state practice and focus on the believe and what the state means to do, much of the Law of the sea convention(LOSC) reflects the custom of the states in regards Sea and water before the covention came into place.
Opinio juris sive necessitas (“an opinion of law or necessity”)
Opinio juris occurs when States act out of a belief that they are either forbidden from doing something or compelled to do it by international law. It differentiates what a State does out of a legal obligation and what a State does out of regular courtesy or comity. Opinio juris is demonstrated through various means. Most of the Convention was written to reflect the sense of obligation that States already felt towards each other regarding law of the sea.
Customary international law can be difficult to define due to it flexibility and ability to change as the world evolve, It is quite difficult to determine whether customary international law has change, at what time, at what precision, if ever non compliance with customary international law is a new custom or a violation of customary international law. Customary international law is much more easier to practice when codified in a single document that is what lead to the codification of treaties for easy reference and consistent practice among party states, as a norm in international law it is generally believe that if a treaty represent international custom it must up held by every states even states that are not parties to the treaty.
Customary international law played a vital role in the law of the sea. In the 13th century the Roman law postulate that the sea is by nature common and peculiar to mankind and no one shall take possession of the sea in the same manner as that of land. In the 16th century due to conquest the Roman empire has be changed to independent states with define boundaries which lead to the birth of the rule of territoriality which cuts across land,sea and space. It has been generally accepted as a norm that coastal states enjoy some rights regulate their own interest in activities in the sea adjoining to their territorial coast, from this constant custom regime of the territorial sea emerge and the measurements of the breadth of the territorial sea developed gradually, Most of the rules governing the maritime zones has been developed by customary international law, since the early debate about maritime boundaries and the practice of the state to dominace of the ocean for different purposes, this customs has been codified in the Geneva convention of 1958 and the United Nations Convention on Law of the Sea.
Conference on the Law of the Sea
In a bid for states to expand their territoral and maritime boundaries in other to trade across the coast with other sovereign states, concern states started looking for ways to demarcate their coastal boundaries this led to various conventions. The first off-shore oil ring out in the sight of land started producing in 1947 and there was slow off-shore operations in 1950s, In the 1960s there was a boom in the activity and technology; various platforms started drilling thousands of feet below the surface and could be located further offshore, during this same period advance was made on fishing, Nations began to exceed their maritime boundaries and exploit distance fishing.
In 1958, The Conference on Law of the Sea(UNCLOS) was held in Geneva from 24th of February to 27th of April 1958, the convention was held on the basis that sovereign states will make laws as regards maritime and boundary demarcation in other to Foster maritime trade across coastal boundaries, the conference resulted to the conclusion of four convention that led to the codification and enactment of Customary international law, these convention are;
- The Convention on territorial sea and contiguous zone: This convention provided for the first time in the worlds history the ownership of Territorial Seas, the convention also provided for the contiguous zone of the seas as it grants coastal states the right to own and exercise control of their coastal territory to prevent infringement of it’s custom, fiscal, immigration form external forces within it’s territoriality sea.
- The Convention on continental shelf: The convention on continental shelf set regulations base on what the states has been practicing and their consistency in law of the seas, the convention grants coastal states the rights and privilege to exploit and explore natural resources of the seabed and subsoil beyond the external limits of it’s Territorial seas. The convention gave developed state advantage over developing states in exploit and exploration of natural resources in the sea due to technological superiority reasons.
- The Convention on the High seas: The convention in it’s preamble states the intension of the states to codify the rules and regulations of international law as regards High Seas as general declaration of the principles of international law which will guild states that are party to it, these rules and regulations concerns the freedom of the high seas which is open to all states.
- The Convention on fishing and conservation of living resources of the High Seas: This convention spells out rules and regulations the guilds fishing and conservation of living resources of the High Seas which all states must comply with.
The United Nations Convention on the Law of the Sea 1982(UNCLOS)
United Nations Convention on the Law of the Sea is a globally accepted international law that guilds the territoral sea, demarcation of coastal boundaries, fishing, trading and High sea relating matters, UNCLOS is an international treaty than prevail between states which are parties to it’s emancipation in Geneva in 1958.
The convention enacted by the United Nations comprises of not more than 320 articles which cuts across every aspect of the Sea such as the maritime zones, delimitation of the sea boundaries, it’s environmental control, economic and commercial transactions, settlement of disputes relating to ocean matters, marine scienctific research.
In it’s concern for maritime zones, the United Nations Convention on the Law of the Sea established some maritime zones, these zone are: the internal Waters, the contiguous zones, continental shelf, exclusive economic zones, the territorial Sea, the High Seas and deep ocean.
These maritime zones is provided for by United Nations Convention on the Law of the Sea to regulate the activities of parties states in relation to maritime activities and coastal boundaries.
Explanation of the Maritime zones
The rights of coastal states to own, explore and exploit the area of ocean in their territory is part of the concern of Law of the sea, the freedom to navigate through the high sea, fishing, trading and access to natural resources in the High Sea outside the state control. Maritime zones are drawn by what Law of the seas calls “baseline” which will demarcate coastal boundaries among coastal states, As seen in the graphic below, the LOSC divides the ocean into six different zones: 1. Internal Waters
- Contiguous Zone
- Continental Shelf 4. Territorial Sea
- Exclusive Economic Zone
- Internal waters: Article 8 of the UNCOLS define internal waters as “seas or an exclusive economic zone, Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State, Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal watersareas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters, the internal water as described by Article 8 of UNCLOS includes bays, ports, canals , habours, rivers and lake.
The internal water constitute a very peculiar part of a coastal state, coastal states enjoys full territorial right of them because no state can claim innocent passage of another states internal water, entrance into coastal state territory requires permission from the coastal state any breach of this will result to seizure of ship by the coastal state.
- Continuos Zone: The Contiguous zone is a thin belt of water lying seaward of the territoral sea, it is the extension and expansion of the coastal states jurisdiction that goes beyond the territoral sea, as encoded in the convention the contiguous zone has to be declared by the coastal state in order to exercise control.
Article 33 (1) UNCLOS states that ” 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. This particular section expressly stated the need for coastal states to prevention of any infringement on their territorial sea.
In conclusion the UNCLOS grant coastal state the permission to pursue any foreign ship that violates the laws and regulations of the coastal state in relation to article 33 (1).
- Continental shelf: The Continental shelf is defined in Article 76 (1) of UNCLOS as “The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial seathroughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from thebaselines 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”, the shelf as defined by the convention shall not extend beyond the limits of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer part of the Continental margin, by this the convention set two limits to the Continental shelf, the natural prolongation and the legal limits as stated in section 76 (1).
The rights and privilege of coastal state over the affairs of the Continental shelf in exploitation and exploration of natural resources of the Continental shelf is encoded in article 77 of UNCLOS which states “1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
- 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.
- The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
- 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.
- Territorial Sea: The territoral sea is the demarcation of waster extending towards the sea from a state coastal baseline, it is also called “Maritime Belt” . Article 3 of the UNCLOS provided for the breadth of territorial sea “Every State has the right to establish the breadth of its territorial sea upto a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention, the coastal state has fundamental right to the territoral sea it means the territoral sea of a coastal state is part of it’s jurisdiction as well as it’s seabed and subsoil and has the right to exploit and explore it’s natural resources without prejudice, However, the sovereignty of coastal state over the territoral water is not absolute but subject to the whims and Caprice of international law as indicated in article 2 (3) of UNCLOS.
- Exclusive Economy Zone (EEZ): One of the peculiar features of the United Nations Covention on the Law of the Sea is the provision made for regulating Exclusive Economy Zones, Article 55 describe EEZ as thus “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.
In the Exclusive Economy Zone the coastal states as regards the provision of the convention the right to exploit and explore, conserving and managing the natural resources the s, 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.
- Article 56 also allows States to establish and use artificial islands, installations and structures, conduct marine scientific research, and protect and preserve the marine environment through Marine Protected Areas. Article 58 declares that Articles 88 to 115 of the Convention relating to high seas rights apply to the EEZ “in so far as they are not incompatible with this Part [V].
- This maritime zones Incorporated by the United Nations in other to guild maritime and coastal states in relation to Law of the sea and High oceans for the exploration and exploitation of it’s natural resources by coastal states as well as it’s jurisdiction and demarcation of maritime boundaries which must be in conformity with international law.
Judicial Intervention of maritime and coastal disputes
Coastal states in their bid in exercising their right in exploration and exploitation of natural resources, trading, marine science research, fishing and demarcation of maritime boundaries arouse dispute with other coastal states, In other to settle the disputes supplications were made for judicial intervention for the resolution of disputes amidst coastal states.
International court of justice Hague, Netherlands being the judicial arm of the United Nations established in relation to Chapter 14 of the United Nations Charter of 1945 which made provision for the establishment of the judicial arm of United Nations which will see to the settlement of disputes and giving of advisory opinions on contending issue at the request of the General Assembly of the organization, the jusrisdiction of International court of justice is embedded in article 36 of the Statute of the court, The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation ; d. the nature or extent of the reparation to be made for the breach of an international obligation.
In it’s bid in carrying out it’s role, the court has adjudicated on maritime and coastal disputes between states which made supplications before the court for judgement or for a clear cut of international law on any confusing issue, on 28th day of August 2014 Somalia instituted a proceeding against kenya before the court in Hague for the Maritime delimitation of Kenya in the Indian ocean, Somalia and Kenya share a land boundary in East Africa that meets the Indian Ocean at a point located at approximately 1° 39΄ 43˝ S and 41° 33΄ 34˝ E. The coasts of the Parties in this area face generally south‑southeast.
In anticipation of its July 1989 ratification of UNCLOS, the President of Somalia issued Law No. 5 dated 26 January 1989 approving the Somali Maritime Law of 1988. Among other things, the 1988 Somali Maritime Law provided that the breadth of the territorial sea would be 12 M, claimed a 200 M EEZ and stated that the continental shelf of Somalia extends throughout the natural prolongation of its land territory to the outer edge of the continental margin. Law No. 5 further repealed any prior laws inconsistent with the Somali Maritime Law of 1988.
On 9 February 1989, Somalia further enacted Law No. 11 adopting UNCLOS and incorporating the Convention’s provisions into internal law. The same date, Presidential Decree No. 14 was promulgated, entering Law No. 11 into effect. On 30 June 2014, in conformity with UNCLOS, the President of Somalia issued a Proclamation claiming an EEZ extending to 200 M measured from nor‑ mal baselines. The same day, Somalia deposited with the United Nations Division of Ocean Affairs and the Law of the Sea, a list of co‑ordinates defining the outer limit of its EEZ.
Somalia made its full submission concerning the outer limits of its continen‑tal shelf beyond 200 M to the CLCS on 21 July 2014. As detailed therein, the outer limits of the continental shelf of Somalia extend well beyond 200 M across the entirety of Somalia’s Indian Ocean coast. In some places, the outer limit extends fully to 350 M2. Somalia made its submission without prejudice to the question of maritime delimitation with neighbouring States, including Kenya. For its part, Kenya claims a 12 M territorial sea pursuant to its 1972 Terri‑torial Waters Act, as revised. Under its 1989 Maritime Zones Act and a Presiden‑tial Proclamation dated 9 June 2005, Kenya also claims a 200 M EEZ. Kenya measures the breadth of its territorial sea and EEZ from a series of straight baselines covering the full length of its coast. These baselines were first declared in the 1972 Territorial Waters Act and have been amended from time to time. Somalia considers that Kenya’s straight baselines do not conform to the requirements of UNCLOS, Article 7. Kenya does not, to the knowledge of the Government of Somalia, currently have any legislation in force with respect to its continental shelf. Nevertheless, on 6 May 2009, Kenya made a submission on the continental shelf beyond 200 M to the CLCS. At paragraph 1‑4 of the Executive Summary to its submission.
The Court is asked to determine, on the basis of international law, the com‑plete course of the single maritime boundary dividing all the maritime areas apper‑taining to Somalia and to Kenya in the Indian Ocean, including in the continental shelf beyond 200 M.
Somalia further requests the Court to determine the precise geographical co‑ordinates of the single maritime boundary in the Indian Ocean.
With this simply analysis on the principle of Admiralty in international law, it is pertinent to note that Maritime is a peculiar aspect of international law which coastal states must conform with for peaceful exploration, exploitation of natural resources and trading along the coast, United Nations Convention on the Law of the Sea 1982 which is a law that guilds the activities of coastal states that are party to it’s emancipation.
OLORUNTUYI OLUWASEUN EMMANUEL
FACULTY OF LAW, ADEKUNLE AJASIN UNIVERSITY
Oloruntuyi Oluwaseun Emmanuel is a student of the prestigious Faculty of law, Adekunle Ajasin University, Akungba Akoko in Ondo State, a passionate lex discipulux who is passionate about the legal profession and it’s encompass aspects. He has keen interest in International law, maritime law, oil gas and energy law.