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81. U.S. telegram concerning certain provisions of Maldives law not in conformity with international law as reflected in the 1982 United Nations Convention on the Law of the Sea, June 21, 2001.


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UNCLASSIFIED
TELEGRAM June 21, 2001

To: AMEMBASSY COLOMBO - ROUTINE

Origin: OES

From: SECSTATE WASHDC (STATE 108848 - ROUTINE)
* * * *
Subject: PROTEST OF MALDIVES EXCESSIVE MARITIME CLAIMS

_________________________________________________________________

1. This is an action request. Post is requested to deliver
the diplomatic note set forth in paragraph 5 to the appropriate level of the government of Maldives (GOM). Following delivery of the note, post is requested to
report the date of the note, date of delivery and the reaction of the GOM, if any.

2. Summary: In the Maritime Zones of Maldives Act no. 6/96,
the GOM decreed a number of provisions which are not in conformity with international law, as reflected in the 1982 United Nations Convention on the Law of the Sea (the LOS Convention). The Law purports to restrict innocent passage in the territorial
sea, high seas freedoms of navigation in the exclusive economic zone (eez) and the right of archipelagic sea lanes passage for military aircraft and in creating certain archipelagic straight baseline segments, the GOM has exceeded maximum lengths.

3. Begin background . . .

The 1996 law purports to delimit the maritime zones of the
GOM in conformity with the LOS Convention. Although most of the law's provisions are consistent with international law, there are provisions that illegally restrict navigational rights and freedoms in the territorial sea and eez and hamper the
right of archipelagic sea lanes passage for military
aircraft. In addition, two of the archipelagic straight
baselines drawn by the GOM exceed the maximum number of
baselines in excess of 100 nautical miles permitted by the
LOS Convention.

The United States concern with the GOM maritime claims exist
on two levels. As noted in detail below, we view the claims as infringing on our rights in specific areas of the seas surrounding the Maldives. Second, if left unprotested, the GOM claims could set an adverse precedent regarding the development of international practice generally. Such assertions of jurisdiction and authority
That exceed what international law allows must be confronted
or our rights will diminish as we may be seen to acquiesce in
such claims. For these reasons, the United States routinely
protests excessive claims of other countries.

End background.

4. Begin talking points:

- Since 1983, the United States has accepted the non-seabed
traditional-use provisions of the 1982 United Nations Convention on the Law of the Sea as reflecting customary international law, and has acted accordingly.

- I have been asked to convey to you the concerns of my
Government regarding certain provisions of the Maritime Zones of Maldives Act no. 6/96.

- As is set forth in the note I have been asked to give you,
the Act's provisions regarding the right of innocent passage
through the territorial sea, entry of foreign ships into the
exclusive economic zone and archipelagic sea lanes passage by
military aircraft are not in accordance with international
law, including the 1982 United Nations Convention on the Law
of the Sea. In addition certain archipelagic straight
baselines exceed maximum lengths permitted by international
law.

- I wish to assure you that my government's objections to
These sections should not be viewed as singling out the Maldives for criticism.

- This is only one of a number of U.S. demarches made over
the years concerning maritime claims by coastal states that are not consistent with international law, as reflected in the 1982 Convention on the Law of the Sea.

- As these are matters of considerable importance to both our
countries in maintaining the balance of interests set out in the 1982
Convention on the Law of the Sea, the United States would
welcome the opportunity to discuss these matters further
between experts from our two governments.

End talking points

5. Begin text of U.S. note: (complimentary opening) and has
The honor to refer to the Maritime Zones of Maldives Act no. 6/96 as
Published in the United Nations Law of the Sea Bulletin No.
41 (1999).

The Government of the United States notes that article 13 of
the Act requires prior authorization by the GOM before entry into the territorial sea of foreign warships, nuclear-powered ships and ships carrying any nuclear or other inherently dangerous or noxious substances. This requirement is inconsistent
wth international law.

The United States wishes to recall that customary
International law, as reflected in articles 17 to 26 and
Article 52 of the 1982 United Nations Convention on the Law
of the Sea (LOS Convention), provides that the ships of all
States enjoy the right of innocent passage through the
territorial sea of a coastal state as well as the
archipelagic waters of an archipelagic state. Innocent
passage is a navigational right that may be exercised without
requirement to provide prior notification to or obtain
permission from the coastal state. This right applies to all
ships, regardless of flag, type, means of propulsion, cargo,
destination, armament, or purpose of voyage. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Passage is considered to be prejudicial to the peace, good order or security of the
coastal state if a foreign ship engages in one of twelve specific activities listed in article 19(2) of the 1982 Convention. Mere passage of a warship, nuclear-powered ship or ship carrying nuclear or other inherently dangerous or noxious substances is
not included in the list of activities contained in article 19(2).
The United States also wishes to recall that a coastal state
may, consistent with international law, adopt laws and
regulations relating to innocent passage to the extent such
Requirements do not hamper innocent passage or do not have
The practical effect of denying or impairing the right of
Innocent passage. (Articles 21 and 24, LOS Convention).

The United States would additionally recall that the
transport of nuclear or other inherently dangerous material
Is regulated by a number of international agreements,
iIncluding the LOS Convention (articles 22 and 23), the
International Maritime Organization (IMO) Code for the Safe
Carriage of Irradiated Nuclear Fuel, Plutonium, and
High-level Radioactive Waste on Board Ships, the IMO
International Maritime Dangerous Goods Code, the Physical
Protection Convention and the International Atomic Energy
Agency (IAEA) Regulations for the Safe Transport of
Radioactive Material. These provisions do not allow a
coastal state to prohibit the innocent passage of such ships
through the territorial sea or to condition such transit on
prior notification or authorization.

The United States notes that article 14 of the Act purports
to require all "foreign vessels" to obtain the authorization of the GOM before entering the exclusive economic zone. This requirement is inconsistent with international law.

The United States wishes to recall that, within the exclusive
economic zone, a coastal state has sovereign rights for the purpose of exploring, exploiting, conserving, and managing the living and non-living natural resources of the water column and the sea-bed and its subsoil. The coastal state also has
jurisdiction with regard to the protection and preservation
of the marine environment, marine scientific research and the establishment and use of artificial islands, installations and structures for economic purposes. However, a coastal state's rights and jurisdiction within the exclusive economic zone are subject to the rights and duties of other states as provided for in International law, including article 58 of the 1982 Convention. The rights specifically preserved for the ships and aircraft of all states in the exclusive economic zone Include the freedoms of navigation and overflight, and other Internationally lawful uses of the sea related to those freedoms, without requirement to provide prior notification to or obtain the prior permission from the coastal state.

To the extent article 14 of the Act purports to condition freedoms of navigation and overflight, and other lawful uses of the sea related to those freedoms, in the Maldives exclusive economic zone on prior authorization, it is inconsistent with international law.

The United States also notes that article 15 of the Act purports to limit overflight of the archipelagic waters of the Maldives by foreign military aircraft and to require prior authorization by the GOM. This requirement is also inconsistent with international law.

International law, as reflected in article 53 of the LOS Convention, provides that all ships and aircraft, including military aircraft, enjoy the right of archipelagic sea lanes
Passage over archipelagic waters and the adjacent territorial sea. This right may not be conditioned on a requirement to provide prior notification to or obtain prior permission from
The archipelagic state. The right of archipelagic sea lanes passage may be exercised in accordance with international law through all routes normally used for international
Navigation. Archipelagic sea lanes passage means the exercise of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or
And eez and another part of the high seas or eez. The right of archipelagic sea lanes passage cannot be hampered or suspended for any purpose. (LOS Convention, articles 54, 44, 42)

Finally, the United States notes that in schedule 1 of the Act, thirty seven straight archipelagic baselines are defined By a listing of geographic coordinates. Three segments (14-15, 28-29, and 36-37) exceed 100 nautical miles in length. Under article 47(2) of the LOS Convention, only up to three percent of the total number of a country's
Archipelagic baselines may exceed 100 nautical miles in length up to a maximum of 125 nautical miles. Thus, under international law, Maldives may only have one baseline that
exceeds 100 nautical miles in length. However, these segments could be revised so as to meet the length requirements while remaining within the land to water ratios
specified in article 47(1) of the LOS Convention.

Accordingly, the United States reserves its rights and the rights of its nationals in this regard.

(complimentary close)

End text of U.S. note
POWELL
_________________________________________________________________



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