Sri Lanka’s Legal Regime on the Sea

Part 3

The Coast Conservation Act deals mainly with the coastal zone, and coasts is defined to mean ‘the border of land which is adjacent to the sea, and not covered by seawater, hence its applicability does not generally extend to the territorial sea, and to foreign vessels. The applicability of the other two Acts however is much wider. The Act dealing with national aquatic resources does with the development of aquatic resources. ‘National Aquatic Resources’ are interpreted to include living and non- living resources contained in or found beneath the medium of water, and which are subject to the sovereignty, jurisdiction or control of Sri Lanka. This would include both exclusive economic zone as well as the continental shelf, and is hence much more wide ranging in effect. The regulations which the Minister can make under this Act would have effect in this entire zone. The Marine Pollution Prevention Act applies to what is termed Sri Lanka waters, and Sri Lanka waters are defined as being the Territorial sea, the Contiguous Zone, the Exclusive Economic Zone, the Continental Shelf and the Pollution Prevention Zone, in the Maritime Zones Law No. 22 of 1976. Apart from the above, criminal legislations have relevance where necessary.

Our examination of the Sri Lanka legislation in respect of Sri Lanka’s territorial waters, shows that in many instances the Sri Lanka authorities have the right of boarding and searching, as well as arresting persons contravening its laws, and authority to detain, or forfeit the offending vessel. However in respect of crimes committed on board the foreign ship, the coastal State exercises no jurisdiction, as here the jurisdiction of the flag state applies. The rule of customary international law is spelt out in Article 27, of the Convention 1982 UN which provides that 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. If the consequences of the crime extend to the coastal State, or the good order of the State, 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 if such measures are necessary for the suppression of the illicit traffic in narcotic drugs, or psychotropic substances.

Principle of Sovereign Immunity

In respect of the warships and other State vessels operated for non-commercial purposes, the international law principle of sovereign immunity applies i.e. no State can exercise jurisdiction over another on the basis that all States are equal, par in parem non habet imperium. This principle is given recognition in Article 32 of the 1982 Convention. However, the Convention provides that if a warship fails to comply with the laws and regulations of the coastal state, the coastal State may require it to leave the territorial sea immediately. The Sri Lanka Maritime Zones Law is more stringent as it provides that a foreign ship or a foreign aircraft which acts in contravention of the provisions of this law is liable to confiscation. And in the context that it follows the sections which state that ‘no foreign warship or military aircraft shall enter or pass through the air space above the territorial sea except with the prior consent of, and subject to such conditions as may be specified by the Minister’. The term foreign ship or aircraft may be deemed to include a military aircraft and warship.

Piracy on the High Seas

Fishermen get ready to venture to the sea.

Piracy on the high seas is an international law offence but committed on seas within national jurisdictions it may not come within the Convention definition. Hence it becomes necessary to criminalize all acts of piracy or intent to comment piracy, under the national laws as well. Sri Lanka’s Maritime laws make provision for criminalizing acts of piracy under the Piracy Act No 9 of 2001. The suppression of unlawful acts against the safety of maritime Navigation Act of 2000 provides for the enforcement of the Rome Convention on the suppression of unlawful acts against the safety of maritime navigation of 1988. This Act does not specifically refer to piracy but to unlawful acts committed on the seas with the general intension of curbing terrorism. The High Court of Colombo/the High Court of Western Province have exclusive jurisdiction to try offences under this Act.

State’s Authority over Resources; The Territorial Sea

The Maritime Zones Law speaks of the sovereign rights in territorial waters. Hence, in the territorial sea Sri Lanka has exclusive rights to the fisheries. This right also extends to the historic waters, part of which has been designated as territorial sea and part of it as internal waters.

Under the Fisheries and Aquatic Resources Act of 1996, fishing in Sri Lankan waters can be done only under a license issued by the Director of Fisheries. Similarly local fishing boats have to be registered. In the case of other fisheries, under the Regulation of Foreign Fishing Boats Act of 1979, foreign fishing boats are prohibited from fishing in Sri Lankan territorial waters except under the authority of a permit and there too certain areas can be reserved only for local fishermen. Furthermore foreign fishing boats which are fishing in these waters have to be licensed. Local fishermen too have to license their vessels and to observe certain rules regarding use of explosives and poisonous substances which are prohibited. National Aquatic Resources Research and Development Agency (NARA), has among other functions that of promoting the development of fisheries and the fishing industry and regulations may be made under this Act too by the Minister. (Act No. 54 of 1981)

The sovereignty of the State extends over the seabed and subsoil of this zone too, so that the State can exploit and extract any minerals in this region. The main activity in this sphere has been exploration for petroleum. In view of the fact that the State has sovereign rights over the seabed any oil discovered would vest in the State. The Indo- Lanka Boundary Agreements of 1974 and 1976 both provide that where petroleum deposits in the waters delimited between the two countries, forms a single geological petroleum or natural gas structure or fields which extends across the boundary, once State should not exploit any part of such structure or field from its side without seeking to reach an agreement with the other State as to the manner of exploitation as well as apportionment of proceeds deriving there from.

Contiguous Zone

Adjoining the territorial sea is the Contiguous Zone. This zone originated in the customary international law as a functional zone. The Maritime Zones Law makes provision for a contiguous zone in section 4. This states that the President may by Proclamation declare such a zone. The section states that ‘where there is a reasonable apprehension of the contravention of any written laws of Sri Lanka in relation to (a) the Security of the Republic. (b) Immigration, health and sanitation or (c) customs and other revenue matters, the relevant Minister shall take such measures as may be necessary in respect of the contiguous zone, in order to secure the enforcement or to prevent the contravention of such laws’. The Sri Lanka legislation is a little wider in scope as it includes the security of the Republic. Moreover the Maritime Zones Law speaks of both enforcement of and preventing of the contravention of its laws, whereas the Convention speaks of preventing infringement and punishing infringement, but this is more a difference of terminology rather than of content. Under the Maritime Zones Proclamation the limit of this zone has been fixed at 24 miles from the baselines, so that it now accords with the limits set under the 1982 UN Convention.

The importance of the functional zones has been largely obviated by emergence of the Exclusive Economic Zones, and the doctrine of the Continental Shelf which have vastly enlarged the jurisdiction of the State. However the exclusive economic zone is mainly concerned with the exploitation of the economic resources so that the contiguous zone although now merged with in the wider limits of the Exclusive Economic Zone (as both zones are measured from the same baseline which is normally the low water line on the coastline) still serves a distinct purpose as the rights which may be exercised therein are confined to prevention and punishment of the infringement of the coastal state’s customs, fiscal, immigration or sanitary laws and regulations. In relation to sanitary laws however the wider pollution prevention zone of 200 miles would overlap the jurisdiction exercised in the contiguous zone. But the Sri Lanka customs and immigration legislation, applies only to the territorial sea of Sri Lanka, so that the presence of a contiguous zone plays a useful role in that an extended jurisdiction i.e. up to 24 miles in extent, in respect of these matters may be assumed by the State.

(The writer is a retired Professor in Law in University of Sri Jayewardenepura. He is an Attorney at-Law who has practised in Courts and Holds Ph.D in Law with four other University Post Degrees)


dailynews sri lanka

, Feature, lanka’s,legal,regime,

Post a Comment

Previous Post Next Post