Law of the sea: baselines, territorial sea, contiguous zone and EEZ

1. Development

The seventeenth-century debate was between Grotius's Mare Liberum (1609), arguing that the sea is free to all, and Selden's Mare Clausum (1635), defending claims to sovereignty over seas. The compromise was a narrow belt of coastal sovereignty and a free high sea. The cannon-shot rule (Bynkershoek) produced the three-mile limit.

Codification: the First UN Conference on the Law of the Sea (Geneva, 1958) produced four conventions (territorial sea and contiguous zone; high seas; fishing; continental shelf), but failed to fix the breadth of the territorial sea. The Second Conference (1960) also failed. The Third Conference (1973–1982) produced the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), in force from 16 November 1994. India ratified it in 1995. UNCLOS created the International Tribunal for the Law of the Sea (Hamburg) and the International Seabed Authority (Kingston, Jamaica).

2. Baselines

All zones are measured from the baseline.

• Normal baseline (Article 5): the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State.
• Straight baselines (Article 7): where the coastline is deeply indented and cut into, or there is a fringe of islands along the coast in its immediate vicinity, straight lines joining appropriate points may be used. They must not depart to any appreciable extent from the general direction of the coast.
• Bays (Article 10): a closing line of up to 24 nautical miles may be drawn across a bay whose area is at least that of a semicircle on the closing line.

Anglo-Norwegian Fisheries (UK v. Norway), ICJ, 1951. Norway, by a decree of 1935, drew straight baselines joining the outermost points of its skjærgaard (rock rampart) along a deeply indented coast, enclosing waters where British trawlers had fished. The UK argued that baselines must follow the low-water mark and that bays could be closed only by lines of ten miles. Held for Norway:

• the straight baseline method was consistent with international law for such a coast, since the baseline must follow the general direction of the coast;
• the ten-mile rule for bays was not a rule of general international law, and in any case Norway had always opposed it (persistent objector);
• the Norwegian system had been applied consistently for many years and the UK had not protested (acquiescence);
• the delimitation of sea areas always has an international aspect and cannot depend merely on the will of the coastal State.

The judgment was codified in Article 4 of the 1958 Convention and Article 7 of UNCLOS.

3. Internal waters

Waters on the landward side of the baseline (ports, rivers, bays, waters enclosed by straight baselines) are internal waters (Article 8). The coastal State has full sovereignty as over its land, and there is no right of innocent passage, except where straight baselines enclose waters not previously regarded as internal (Article 8(2)). Foreign merchant ships in port are subject to local jurisdiction, though by comity the coastal State usually leaves internal discipline to the flag State unless the peace of the port is disturbed.

4. Territorial sea

Article 2: the sovereignty of a coastal State extends beyond its land territory and internal waters to an adjacent belt of sea, the territorial sea, and to the airspace over it and its bed and subsoil. Article 3: every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles from the baseline.

Innocent passage (Articles 17 to 19). Ships of all States enjoy the right of innocent passage through the territorial sea (Article 17).

• Passage (Article 18) means navigation for the purpose of traversing the sea without entering internal waters, or proceeding to or from internal waters. It must be continuous and expeditious; stopping is allowed only if incidental to ordinary navigation or required by force majeure or distress.
• Innocent (Article 19): passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Article 19(2) lists activities that make it non-innocent: threat or use of force, weapons exercises, spying, propaganda, launching aircraft, loading or unloading in breach of customs, fiscal, immigration or sanitary laws, wilful and serious pollution, fishing, research, and interfering with communications.
• Submarines must navigate on the surface and show their flag (Article 20).
• The coastal State may make laws on navigation, conservation and pollution (Article 21), and may temporarily suspend innocent passage in specified areas for security, without discrimination and after publication (Article 25(3)). It may not charge for passage alone (Article 26).
• Criminal jurisdiction over a foreign ship in passage should not be exercised except where the consequences extend to the coastal State, the offence disturbs its peace, assistance is requested by the master or flag State, or for drug trafficking (Article 27).

Corfu Channel (UK v. Albania), ICJ, 1949. In October 1946 two British warships passing through the North Corfu Channel in Albanian waters struck mines; 44 sailors died. The Court held that States have a right in peacetime to send warships through straits used for international navigation between two parts of the high seas without prior authorisation, provided the passage is innocent. Albania was responsible because it must have known of the mines and failed to warn: every State has an obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. But the later British minesweeping operation (Operation Retail) in Albanian waters without consent violated Albanian sovereignty.

5. Straits and archipelagic waters

• Transit passage (Articles 37 and 38): in straits used for international navigation between one part of the high seas or EEZ and another, all ships and aircraft enjoy the right of transit passage, the freedom of navigation and overflight solely for continuous and expeditious transit. It cannot be suspended (Article 44).
• Archipelagic States (Articles 46 to 54), such as Indonesia and the Philippines, may draw archipelagic baselines joining the outermost points of the outermost islands (Article 47); waters inside are archipelagic waters, subject to archipelagic sea lanes passage.

6. Contiguous zone

Article 33: in a zone contiguous to its territorial sea, which may not extend beyond 24 nautical miles from the baseline, the coastal State may exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea, and (b) punish infringement of those laws committed within its territory or territorial sea. It is not a zone of sovereignty; the four subjects are exhaustive.

7. Exclusive economic zone

Part V of UNCLOS. The EEZ is an area beyond and adjacent to the territorial sea (Article 55), extending up to 200 nautical miles from the baseline (Article 57). In it the coastal State has (Article 56):

• sovereign rights for exploring, exploiting, conserving and managing natural resources, living or non-living, of the waters, seabed and subsoil, and for other economic activities such as energy from water, currents and winds;
• jurisdiction over artificial islands and installations, marine scientific research, and protection of the marine environment.

Other States keep the freedoms of navigation and overflight and of laying cables and pipelines (Article 58). The coastal State fixes the allowable catch and must give other States access to the surplus (Articles 61 and 62). Opposite or adjacent States delimit by agreement to achieve an equitable solution (Article 74).

8. India's maritime zones

India's zones are declared by the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976: a 12-nautical-mile territorial sea, a contiguous zone up to 24 nautical miles, a continental shelf and a 200-nautical-mile EEZ. Article 297 of the Constitution vests in the Union all lands, minerals and other things of value underlying the ocean within the territorial waters, the continental shelf and the EEZ. The question of jurisdiction in the contiguous zone arose in Republic of Italy v. Union of India, 2013 INSC 43, (2013) 4 SCC 721, discussed in the note on jurisdiction.

How this is examined

As a short note on the territorial sea: define it with Articles 2 and 3, explain innocent passage under Articles 17 to 19 and the coastal State's rights, and cite Corfu Channel. As a short note on Anglo-Norwegian Fisheries: the 1935 decree, the four holdings and Article 7. Essays on the law of the sea generally combine this note with the next (continental shelf and high seas).