CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE ISSUE OF COMPARISON OF STATELESS PERSON WITH STATELESS SHIP … to the registration of the ships. It is rather uncertain whether the right to citizenship, as stipulated in the Convention on the Rights of the Child and the Convention on Elimination of All Forms of Discrimination against Women is at present a matter of a universally accepted customary law. This is possible to assume so in relation to the number of contracting parties, as well as to the reservations of multiple state parties in regard to these provisions, which are against their values, religious or cultural traditions, or domestic laws. It is also not yet possible to find a wide practice of voluntary fulfilment of the obligations defined by these treaties by states, which are not yet a contracting party of these conventions. On the other hand, it is possible to remark that these two conventions do not confirm the existence of the general right to citizenship, which emerged independently on these conventions, and which nowadays might be a matter of a customary law. On the contrary, international maritime law, which includes registration of ships by the states, is nowadays presumed to be in regard to its non-institutional provisions, unless the contrary is proven, as a matter of a customary law based on the high number of states by bound it and of its influence in practise. The ICJ, International Tribunal for the Law of the Sea, and the arbitral tribunals have often applied the UCLOS and sometimes they did so as a reflection of a customary law. Similarly, as remarked above in regard to the general right to citizenship, this relationship between the Convention and customary law does not preclude new customary rules emerging. 66 4.2 Stateless ship in zones of the sea under the territorial jurisdiction of a state In contrast to the high seas, which is in Article 86 of the UNCLOS defined in a negative way as ‘all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State,’ the definition of these individual zones is based on the breath measured from the low-water line along the coast (baseline). 67 T he rules for sailing through the sea zones are defined by the international maritime law and the coastal state, which has the right to exercise a various degree or level of jurisdiction in these zones, must not deviate from these rules on the basis of its domestic laws. The seizure, inspection, and detention of a stateless ship is carried out in the parts of the sea, which fall under the jurisdiction of the coastal state: the territorial sea (limited to the maximum of 12 nautical miles measured from the baselines, Article 17 et seq.) and the continuous zone (limited to the maximum of 24 nautical miles measured from the baselines, Article 33). This right is reserved only to the coastal state which in accordance with Article 25 ‘may take the necessary steps in its territorial sea to prevent passage which is not innocent’ and ‘suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security’. The coastal state is also entitled to retain the stateless ship and stop it from further passage in the straits used for international navigation, (Article 34 et seq.) but this should be done in a way that it does not interfere with the smooth passage through the straits (Article 45). An analogous conclusion can be reached in relation to the right of sailing in the waters of archipelagic states (Article 46 et seq.) T he exclusive economic zone (limited to the maximum of 200 nautical miles, Article 55 et seq.), falls under a particular legal regime, which combines the special rights of a coastal 66 TREVES, T. United Nations Convention on the Law of the Sea. In: United Nations Audiovisual Library of International Law. 2008. [online] [accessed on 19 May 2024] Available at: https://tinyurl.com/bdeby4y3. 67 Art. 5 UNCLOS.

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