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Law n e
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Introduction
The seas have historically performed two important functions: first, as a medium of
communication, and secondly as a vast reservoir of resources, both living and non-living. Bothof
these functions have stimulated the development of legal rules. The fundamental principle
governing the law of the sea is that ‘the land dominates the sea’ so that the land territorial situation
constitutes the starting point for the determination of the maritime rights of a coastal state.
A series of conferences have been held, which led to the four 1958 Conventions on the
Law of the Sea and then to the 1982 Convention on the Law of the Sea. The 1958 Convention
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on the High Seas was stated in its preamble to be ‘generally declaratory of established principles
of international law’, while the other three 1958 instruments can be generally accepted as
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containing both reiterations of existing rules and new rules. The pressures leading to the Law of
the Sea Conference, which lasted between 1974 and 1982 and involved a wide range of states and
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international organizations, included a variety of economic, political and strategic factors.
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Many Third World states wished to develop the exclusive economic zone idea, by which coastal
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states would have extensive rights over a 200-mile zone beyond the territorial sea and were keen
constraint.
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to establish international control over the deep sea-bed, to prevent the technologically advanced
states from being able to extract minerals from this vital and vast source freely and without political
Western states were
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weakening of the freedom of passage through international straits particularly and wished to
protect their economic interests through free exploitation of the resources of the high seas and
the deep seabed. Other states and groups of states sought the protection of their particular interests.
Examples here would include the landlocked and geographically disadvantaged states,
archipelagic states and coastal states. The effect of this kaleidoscopic range of interests was very
marked and led to the ‘package deal’ concept of the final draft. According to this approach, for
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example, the Third World accepted passage through straits. It enhanced continental shelf rights
beyond the 200-mile limit from the coasts in return for the internationalization of deep-sea mining.
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The territorial sea
Internal waters
Internal waters are deemed to be such parts of the seas as are not either the high seas or
relevant zones or the territorial sea and are accordingly classed as appertaining to the land territory
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of the coastal state. Internal waters, whether harbours, lakes or rivers, are such waters as are to be
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found on the landward side of the baselines from which the width of the territorial and other zones
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is measured and are assimilated with the territory of the state. They differ from the territorial sea
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primarily in that there does not exist any right of innocent passage from which the shipping of
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other states may benefit. There is an exception to this rule where the straight baselines enclose as
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internal waters what had been territorial waters. In general, a coastal state may exercise its
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jurisdiction over foreign ships within its internal waters to enforce its laws, although the judicial
authorities of the flag state (i.e. the state whose flag the particular ship flies)may also act where
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crimes have occurred on board ship. This concurrent jurisdiction may be seenin two cases.
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A merchant ship in a foreign port or in foreign internal waters is automatically subject to
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the local jurisdiction (unless there is an express agreement to the contrary), although where purely
disciplinarian issues related to the ship’s crew are involved, which do not concern the maintenance
of peace within the territory
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coastal state, then such matters would by courtesy be left to the
authorities of the flag state to regulate. Although some writers have pointed to theoretical
differences between the common law and French approaches, in practice the same fundamental
proposition applies.
However, a completely different situation operates where the foreign vessel involved is a
warship. In such cases, the authorization of the captain or of the flag state is necessary before the
coastal state may exercise its jurisdiction over the ship and its crew. This is due to the status of the
warship as a direct arm of the sovereign of the flag state.
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Baselines
The width of the territorial sea is defined from the low-water mark around the coasts of the
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state. This is the traditional principle under customary international law and was reiterated in
article 3 of the Geneva Convention on the Territorial Sea and the Contiguous Zone in 1958 and
article 5 of the 1982 Convention, and the low-water line along the coast is defined ‘as marked on
large-scale charts officially recognized by the coastal state’. In the majority of cases, it will notbe
very difficult to locate the low water line which is to act as the baseline for measuring the width
of the territorial sea.
By the 1958 Convention on the Territorial Sea and the 1982 Law of the Sea Convention,
the low-water line of a low-tide elevation may now be used as a baseline for measuring the breadth
of the territorial sea if it is situated wholly or partly within the territorial sea measured from the
mainland or an island. However, a low-tide elevation wholly situated beyond the territorial sea
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will generate no territorial sea of its own. When a low-tide elevation is situated in the overlapping
area of the territorial sea of two states, both are, in principle, entitled to use this as part of the
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relevant low-water line in measuring their respective territorial sea. However, the International
Court has taken the view that low-tide elevations may not be regarded as part of the territory of
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the state concerned and thus cannot be fully assimilatedwith islands. A low-tide elevation with a
lighthouse or similar installation built upon it may draw a straight baseline. Sometimes, however,
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the geography of the state’s coasts will be such as to cause specific problems: for instance, where
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the coastline is deeply indented, or there are numerous islands running parallel to the coasts, or
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where there exist bays cutting into the coastlines. Special rules have evolved to deal with this issue,
which is essential to coastal states, particularly where foreign vessels regularly fish close to the
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limits of the territorial sea. A more rational method of drawing baselines might have the effect of
enclosing larger areas of the sea within
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the state’s internal waters and thus extend the boundaries
of the territorial sea further than the traditional method might envisage.
The width of the territorial sea
There has historically been considerable disagreement as to how far the territorial sea may
extend from the baselines. Originally, the ‘cannon shot’ rule defined the width required in terms
of the range of shore-based artillery, but at the turn of the nineteenth century, this was transmuted
into the 3-mile rule. This was especially supported by the United States and the United Kingdom,
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and any detraction had to be justified by historic rights and general acquiescence as, for example,
the Scandinavian claim to 4 miles. However, the issue was much confused by the claims of many
coastal states to exercise certain jurisdictional rights for particular purposes: for example,
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after the First World War that a clear distinction was made between claims to enlarge the width of
the territorial sea and claims over particular zones.
The 3-mile rule has been discarded as a rule of general application to be superseded by
contending assertions. The 1958 Geneva Convention on the Territorial Sea did not include an
article on the subject because of disagreements among the states, while the 1960 Geneva
Conference failed to accept a United States–Canadian proposal for a 6-mile territorial seacoupled
with an exclusive fisheries zone for a further 6 miles by only one vote. Article 3 of the 1982
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Convention, however, notes that all states have the right to establish the breadth of the territorial
sea up to a limit not exceeding 12 nautical miles from the baselines. This accords with the evolving
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practice of states.78 The UK adopted a 12-mile limit in the Territorial Sea Act 1987, for instance,
as did the US by virtue of Proclamation No. 5928 in December 1988.The Juridical Nature of the
Territorial Sea.
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The territorial sea appertains to the territorial sovereignty of the coastal state and thus
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belongs to it automatically. There have been a number of theories as to the precise legalcharacter
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of the territorial sea of the coastal state, ranging from treating the territorial sea as part of the res
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communis, but subject to certain rights exercisable by the coastal state, to regarding theterritorial
sea as part of the coastal state’s territorial domain subject to a right of innocent passageby foreign
vessels.82 Nevertheless, it5H
cannot be disputed
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2I that the coastal state enjoys sovereign rights over its
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maritime belt and extensive jurisdictional control, having regard to the relevant rules of
international law. The fundamental restriction upon the sovereignty of the coastal state isthe right
of other nations to innocent passage through the territorial sea, and this distinguishes theterritorial
sea from the internal waters of the state, which are fully within the unrestricted jurisdiction of the
coastal nation. Articles 1 and 2 of the Convention on the Territorial Sea, 1958 provide that the
coastal state’s sovereignty extends over its territorial sea and to the airspace and seabed and subsoil
thereof, subject to the provisions of the Convention and of international law. The territorial sea
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forms an undeniable part of the land territory to which it is bound, so that a cession of land will
automatically include any band of territorial waters.
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The coastal state may, ifit so desires, exclude foreign nationals and vessels from fishing within its
territorial sea and (subject to agreements to the contrary) from coastal trading (known as sabotage),
and reserve these activities for its own citizens. Similarly the coastal state has extensive powers of
control relating to, amongst others, security and customs matters. It should be noted, however,
that how
far a state chooses to exercise the jurisdiction and sovereignty to which it may lay claim under
the principles of international law will depend upon the terms of its own municipal legislation, and
some states will not wish to take advantage of the full extent of the powers permitted them within
the international legal system.
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The right of innocent passage
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The right of foreign merchant ships (as distinct from warships) to pass unhinderedthrough
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the territorial sea of a coast has long been an accepted principle in customary international law,
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the sovereignty of the coast state notwithstanding. However, the precise extent of the doctrine is
blurred and open to contrary interpretation, particularly with respect to the requirement that the
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passage must be ‘innocent’. Article 17 of the 1982 Convention lays downthe following principle:
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‘ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the
territorial sea’. The doctrine was elaborated in article 14 of the Convention on the Territorial
Sea, 1958, which emphasized that the coastal state must nothamper innocent passage and
must publicise any dangers 0K3C4C2I
to9Bnavigation
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defined as navigation through the territorial sea for the purpose of crossing that sea without
Entering internal waters or of proceeding to or from that sea without entering internal waters or of
proceeding to or from internal waters. It may include temporary stoppages, but only if they are
incidental to ordinary navigation or necessitated by distress or force majeure. The coastal state
may not impose charges for such passage unless they are in payment forspecific services,88 and
ships engaged in passage are required to comply with the coastal state’s regulations covering, for
example, navigation in so far as they are consistent with international law. Passage ceases to be
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innocent under article 14(4) of the 1958 Convention where it is ‘prejudicial to the peace, good
order or security of the coastal state’ and in the case of foreign fishing vessels when they do not
observe such laws and regulations as the coastal state may makeand publish to prevent these ships
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fishing in the territorial sea. In addition, submarines mustnavigate on the surface and show
their flag.
Where passage is not innocent, the coastal state may take steps to prevent it in its territorial
sea and, where ships are proceeding to internal waters, it may act to forestall any breach of the
conditions to which admission of such ships to internal waters is subject.
Coastal states have the power temporarily to suspend innocent passage of foreign vessels
where it is essential for security reasons, provided such suspension has been published and
provided it does not cover international straits. Article 19(2) of the 1982 Convention has developed
the notion of innocent passage contained in article 14(4) of the 1958 Convention by the provision
of examples of prejudicial passage such as the threat or use of force; weapons practice; spying;
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propaganda; breach of customs, fiscal, immigration or sanitary regulations; willful and serious
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pollution; fishing; researcher survey activities and interference with coastal communications or
other facilities.
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Article 21(1) of the 1982 Convention, which expressly provided that the coastal state could
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adopt laws and regulations concerning innocent passage with regard to:
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(a) The safety of navigation and the regulation of maritime traffic;
(b) The protection of navigational aids and facilities and other facilities or installations;
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(c) The protection of cables and pipelines;
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(d) The conservation of the living resources of the sea;
(e) The prevention of infringement of the fisheries laws and regulations ofthe
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(f) The preservation of the environment of the coastal state and the prevention,
reduction and control of pollution thereof;
(g) Marine scientific research and hydrographic surveys;
(h) The prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal state.
Jurisdiction over foreign ships
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Where foreign ships are in passage through the territorial sea, the coastal state may only
exercise its criminal jurisdiction as regards the arrest of any person or the investigation of any
matter connected with a crime committed on board ship in defined situations. if the ship is passing
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tr-through territorial sea having left the internal waters of the coastal state, then the coastal state
may act in any manner prescribed by its laws as regards arrest or investigation on board ship and
is not restricted by the terms of article 27(1).
Under article 28 of the 1982 Convention, the coastal state should not stop or divert a foreign ship
passing through its territorial sea for the purpose of exercising civil jurisdiction in relation to a
person on board ship, nor levy execution against or arrest the ship, unless obligations are involved
which were assumed by the ship itself in the course of, or for the purpose of, its voyage through
waters of the coastal state, or unless the ship is passing through the territorial sea on its way from
internal waters. The above rules do not, however, prejudice the right of a state to levy execution
against or to arrest, for the purpose of any civilproceedings, a foreign ship lying in the territorial
sea or passing through the territorial sea after leaving internal waters.
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Warships and other government ships operated for non-commercial purposes are
immune from the jurisdiction of the coastal state, although they may be required to leave the
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territorial sea immediately for breach of rules governing passage and the flag state will bear
international responsibility in cases of loss or damage suffered as a result.
The contiguous zone
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Historically some states have claimed to exercise certain rights over particular zones of the
high seas. This has involved some diminution of the principle of the freedom of the high seasas
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the jurisdiction of the coastal state has been extended into areas of the high seas contiguous to the
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territorial sea, albeit for defined purposes only. Such restricted jurisdiction zones have been
established or asserted for a number of reasons: for instance, to prevent infringement of customs,
immigration or sanitary laws of the coastal state, or to conserve fishing stocks in a particular
area, or to enable the coastal state
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proclaimed zone.
In each case they enable the coastal state to protect what it regards as its vital orimportant
interests without having to extend the boundaries of its territorial sea further into the high seas. It
is thus a compromise between the interests of the coastal state and the interests of other maritime
nations seeking to maintain the status of the high seas, and it marks a balance of competing claims.
The extension of rights beyond the territorial sea has, however, been seen not only in the context
of preventing the infringement of particular domestic laws, but also increasingly as a method of
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maintaining and developing the economic interests of the coastal state regarding maritime
resources.
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Contiguous zones were clearly differentiated from claims to full sovereignty as
parts of the territorial sea, by being referred to as part of the high seas over which the
coastal state may exercise rights. Unlike the territorial sea, which is automatically attached
to the land territory of the state, contiguous zones must be specifically claimed.
While sanitary and immigration laws are relatively recent additions to the rights
enforceable over zones of the high seas and may be regarded as stemming by analogy from
customs regulations, in practice, they are only justifiable since the 1958 Convention. On
the other hand, customs zones have a long history and are recognized in customary
international law as well. Many states, including the UK and the USA, have enacted
legislation to enforce customs regulations over many years, outside their territorial waters
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and within certain areas, to suppress smuggling, which appeared to thrive when faced only
with territorial limits of 3or 4 miles.118 Contiguous zones, however, were limited to a
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maximum of 12 miles from the baselines from which the territorial sea is measured. So if
the coastal state already claimed a territorial sea of 12 miles, the question of contiguous
zones would not arise
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