The only specialised marine publication in Oceania that focuses on the maritime industry, from super yachts to small craft to large commercial ships, including coastal shipping, tugs, tow boats, barges, ferries, tourist, sport-fishing craft
Issue link: https://viewer.e-digitaleditions.com/i/63646
OCEAN LAW WHAT'S SO SPECIAL ABOUT 12 NAUTICAL MILES? BY KARYN VAN WIJNGAARDEN LLB, BSC, SOLICITOR T he recently-released report of the Ministerial Inquiry into the use and operation of foreign charter vessels highlighted among other things, the important legal distinction between the territorial sea and the exclusive economic zone (EEZ). Not one of the more attention- grabbing aspects of the report perhaps, but an interesting reminder for many New Zealanders, especially those who seldom venture off dry land, that it is easy to overlook the fact that the 12nm limit of the territorial sea marks an essential legal demarcation line. The Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 defines each area of New Zealand's waters, and the rights associated with each of the zones. The "territorial sea" is, generally, the area from mean low water springs, with exceptions for rivers, bays, islands, fiords harbour works. These areas are "internal waters", defined as any body of seawater and on the landward side of the baseline of territorial sea. New Zealand generally has full sovereignty and legal jurisdiction over the territorial sea area, subject to any rights and duties established pursuant to a treaty or convention to which New Zealand is a signatory. All New Zealand laws apply within the territorial limits. The 12nm limit also marks the outer bounds of the jurisdiction of the Resource Management Act (RMA) and, at present, no equivalent environmental protection legislation applies beyond that, as the Tasman Bay incident of the Ocean Patriot highlighted back in 2008. The Ocean Patriot was a drilling rig that Victorian state authorities required to be de-fouled before it was relocated from New Zealand waters to Australia. There was an outcry after it became apparent that the operators of the rig had inadvertently brought it within the 12nm limit while carrying out the de-fouling. Their intention had been to undertake the activity outside 12nm, where they could not be held responsible for any adverse environmental effects that might result. Local navigation bylaws apply only in areas where a regional council exercises jurisdiction as a harbour authority, under the Local Government Act 2002. Maritime rule part 91 applies to any area that is not subject to any local bylaws. Harbour limits vary from region to region, and local bylaws only apply within the harbour limit of each territory. Harbour limits cannot exceed the territorial sea limit, but the boundary of harbour limits varies significantly around the country. For example, the Bay of Plenty's harbour limits are 12nm, out to the territorial limit, while New Plymouth's harbour limits are only 2.5nm from the Port of Taranaki. The EEZ is the area between 12nm and 200nm from shore. The definition of the EEZ as set out in section 9 of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977, includes the sea, seabed, and subsoil. The concept of the EEZ was created by the Third United Nations Convention on the Law of the Sea (UNCLOS) in 1982. The EEZ is a zone over which states have sovereign rights for the purposes of exploring and exploiting, conserving and managing natural resources, but not full sovereignty. Article 56 of UNCLOS provides that states can exercise their jurisdiction in their EEZ for various purposes, including protection and preservation of the marine environment, but must do so with due regard to the rights and duties of other states. Such rights include the right of free passage of vessels, and the rights and responsibilities of other states to regulate vessels registered to them. Not all New Zealand laws apply in the EEZ therefore. Chief among those that do are the Fisheries Act and the Crown Minerals Act, which deal with the utilisation of natural resources, as contemplated by UNCLOS. The Exclusive Economic Zone and Continental Shelf (Environment Effects) Bill would further extend this resource utilisation regime by introducing a sort of "RMA-like" consenting regime for activities in the EEZ. …it is important to remember that New Zealand's laws extend out to the territorial limits. The area beyond the EEZ is the high seas, to which all states have "freedom of the high seas". The area of the high seas falls under international law jurisdiction, however vessels are still subject to the rules of their flag state. This area of jurisdiction is complex and frequently disputed. The distinctions between each of the areas of New Zealand's territories are important for many reasons, but it is important to remember that New Zealand's laws extend out to the territorial limits. Some of the suggestions made in the report may alter the reach of New Zealand's laws into the EEZ. It will be interesting to see how this develops. Karyn van Wijngaarden joined the Oceanlaw New Zealand team this year. Having come from more of a generalist background in her legal life, Karyn has spent a large amount of time on the water and is excited at the prospect of getting involved with the maritime industry from a legal perspective. 14 New St, Nelson. PO Box 921, Nelson 7040. T +64 3 548 4136. F +64 3 548 4195. Freephone 0800 Oceanlaw. Email justine.inns@oceanlaw.co.nz www.oceanlaw.co.nz 52 Professional Skipper May/June 2012