"TERRITORIAL SEA"- By LawPadho

 This article is written by AMRIT BEHERA, a student at Symbiosis Law School, Hyderabad, where he discusses about the   "TERRITORIAL SEA"

 

ABSTRACT

The following paper focuses on the importance of the territorial sea. Most of us are aware that the territorial sea extends up to 12 nautical miles. This paper deals with the history of the territorial sea. And it also focuses of the development of the law relating to the sea and how the rule of 12 nautical miles came into act. The Formation and the role of UNCLOS is also discussed broadly in this paper. The paper also shows India’s position in relation to the territorial waters. It also focuses on the controversies revolving around different countries in relation to the territorial sea with the help of case laws.  

INTRODUCTION

The Earth is nearly covered with 30% of land and 70% of water. The land is present over the planet earth is divided among different countries. But the scenario is case of water is not the same. The water bodies especially the oceans are not owned by any particularly country. If we will look back to the history we can find that seas most importantly helped us as acting as a medium of communication, and also as a vest reservoir of resources. In order to manage this a law that is followed worldwide was needed. So here the International Law comes into play. The branch of International law that deals with water or more specifically ocean is named as “Law of the sea”.

The International law formed a body named the law of the sea to govern the rights and duties of the state in the places of maritime environments. The matters upon which it keeps an eye are the sea mineral claims, navigational rights, and coastal waters jurisdiction.

The Law of the sea is further divided into five parts that are Territorial waters, Contiguous zone, Exclusive economic zone, continental shelf, and high sea. This research paper will mainly focus upon the territorial waters.

The territorial waters otherwise known as maritime belt or the territorial sea. The territorial sea is that part of the sea which is exactly adjacent to the costal state. And over which the costal state exercises sovereignty.

The exercises sovereignty for the coastal states is not only limited to the territorial waters but it also extends over the air-space present above the territorial sea as well as to its bed and subsoil.[1]

In other words, as per the International Law territorial sea can be defined as the area of the sea which is the immediate adjacent to the shore of a state and subject to the territorial jurisdiction of the state.[2]

There prevailed a huge controversy with regards to the breadth of the territorial waters:

There prevailed a great controversy with regard to fixing a limit of breadth of maritime belt for considerable period of time. As time passed by many changes were made with regards to fix the breadth of the territorial sea. The following shows, how the idea of 12 nautical miles came up.

There was a famous jurist named Cornelius van Bynkershoek. He suggested to extend the breadth of territorial waters to a distance up to which a cannon can fire. During the 18^th century the cannon was able to fire to a range of around 3 miles. So for that point of time the cannon theory was used to measure the breadth of the territorial water.[3]

Another jurist named Hugo Grotius stated that the sovereignty of the costal state over the maritime belt should extend only to that area up to which it can exercise its effective control.[4] There was another jurist named Emer de Vattel, supported this view.[5]

As there was a rapid growth in the field of science and technology, the rage up to which a cannon could fire increased considerably. Due to which changing the cannon rule was of utmost importance.

The first important attempt with regard to fix the breadth of the territorial sea was made by the League of Nations. The Hague Codification Conference of 1930,[6] opposed the traditional cannon rule i.e., of 3 miles.

Different countries started claiming different breadth of territorial waters. In 1958, a conference was called up in Geneva, in order to solve this problem and to have a uniform breadth of territorial waters. The conference was based on the laws of sea. Different countries claimed to have different breadth of territorial sea. This controversy couldn’t be resolved in the conference of Geneva, 1958.

In 1960, another committee named as the Second United Nation Conference was set up on the topic of law of the sea in order to solve the above conflict.[7] In this conference America presented an idea that was of the breadth of the territorial waters should stick to 6 miles and beyond that point for another 6 miles the costal state must be given the rights for fishing and other activities. This proposal was highly criticised and further it got rejected. Then after a large number of new states proposed that the range of the territorial sea should be fixed to 12 miles.

In 1982, the controversy relating to the breadth of the “territorial sea” finally came to an end after the adaption of “United Nations convention on the law of the sea”. As per article 3 of the United Nations Convention states that “Every state has the right to establish the breadth of its territorial sea up to a limit not extending 12 nautical miles (22 kilometres/14 miles) measured from the baseline that is determined in accordance with this convention.”[8]

RESEARCH QUESTIONS

1.      What is the nature, scope and definition of territorial sea?

2.      What is the view of India in relation to territorial sea?

3.      What are prescribed conditions that need to be fulfilled for innocent passage on territorial sea?

4.      What are the rights and duties and criminal Jurisdiction of costal states?

5.     What was the South China dispute in relation to the law of sea and why is it a major issue in relation to international law?

RESEARCH METHODOLOGY

The above research is been done by following the doctrinal method of research. While writing this paper study of analytics and descriptive was used. To support each point given in the research paper proper explanation, examination, statues, laws, and case laws are provided. “The starting point of research will be a strong doctrinal analysis. It would describe the law is now and whether there are indications as to how the law might be evolving or developing. It would follow the pattern of a positivist legal research. But the full pattern of research will be a cleaver mix of doctrinal, descriptive and analytical method.”

“It would critically evaluate the law and dwell into the areas which are uncertain and require changes or are evolving.” The citation style that is used to write this paper is 20th Edition Bluebook.

“Reference has been made from secondary sources like books, journals and articles and online websites. All the sources have been duly acknowledged.”

UNCLOS

The full form of UNCLOS is “United Nations Convention for the Law of the Sea”. It is also simply referred as “Law of the Sea”. UNCLOS is an “international agreement” or it can also be called as a treaty that includes countries all over the world.[9] The rules and guidelines for using the world’s oceans and seas are established by this agreement or treaty. The main reason behind establishing these rules was to use and conserve the marine resources and also to protect the living beings of the sea. On 10^th December 1982 this agreement was signed[10]. And it was signed at the Montego Bay, Jamaica as it was the place where UNCLOS tool place from 1973 to 1982. In the year 1994 this came into force[11].

LEGAL POSITION OF THE COASTAL STATE

Till 1960s countries used to claim their territorial sea as three miles. And during that time there existed no uniformity among nations regarding the territorial sea. In 1982 a convention took place which resulted in states having a uniform with of territorial sea. And as per article 1[12] of the convention that took place in the year 1958, the sovereignty of the state extends not only over the land territory and internal waters but also over a belt of sea adjacent to its coast. According to article 2(1)[13] of UN Convention that took place in 1982, states that “the sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea”. And article 2(2)[14] of the UN Convention that took place in 1982 states that the sovereignty of the country outspreads to the space that is present above the “territorial sea” including its bed and subsoil.

Article 2(3)[15] of the 1982 UN Convention states that the sovereignty of the “territorial sea” is to be exercised while keeping an eye on the other rules of international law. As per article 3[16] of the UN Convention that took place in 1982 states that all the states have the right to set up the scale of the “territorial sea” which must be between 0-12 nautical miles, which must be dignified from the base line which is determined as per the convention. The measurement of the width of “territorial sea” must be done from the low level of water mark that is present around the coastal area of the state.[17] The costal state should have the exclusive jurisdiction of the areas of territorial sea. But the “right of Innocent passage” can be exercised by the other states.

AN EXPLANATION OF THE IDEA OF RIGHT OF INNOCENT PASSAGE

The right of innocent passage comes under article 17[18] of the UN Convention that took place in1982. It states that ships of all states, whether costal or land-locked have the right to enjoy the “right of innocent passage” over the “territorial sea”. In the UN convention of 1982 they also provided certain provisions in relation to meaning of passage. As per article 18(1)[19] of the 1982 UN Convention it states that the meaning of passage is to sail across the “territorial sea” with the purpose of:

1.      Crossing the particular sea without entering inside the internal waters.

2.      Going through or from the internal waters.

The passengers exercising the “right of innocent passage” must be continuous and expeditious. Article 18(2)[20] of the 1982 UN Convention provides certain relaxation to this. It states that the passengers may stop or use the anchor but it is only allowed when the purpose is of same ordinary navigation or have to stop due to some unfortunate reasons.[21] Adding to this article 19(1)[22] of the 1982 UN convention states the meaning of “innocent passage”, according to this “the passage is innocent until and unless it not prejudicial to the peace, good order or security of the state”. Such passage must be done in accordance to the laws of UN convention and the international laws. And article 19(2) (i)[23] of the 1982 UN convention also states that the point at which the peace and security of the “territorial sea” of the state is fraught by any act of the passenger then the right of innocent passage no longer remains innocent. 

OBLIGATIONS OF THE COASTAL STATE

There are some obligations of the costal state in reference to innocent passage that came under the UN Convention of 1982. And as per article 21(1) - (4)[24] of the 1982 UN Convention the costal state have the power to make necessary laws in relation to the right to innocent passage. Further in reference to this, article 22(1) states that the Costal state has the power to make laws as to ensure the security of the innocent passage.[25]

Article 25[26] of 1982 UN Convention mostly focuses on the rights that are given to the coastal states for their protection. And as per article 25(1)[27] to prevent the passage which is not innocent the coastal countries have the right to make required steps regarding the “territorial sea”. Most importantly Article 25(3)[28] of 1982 UN Convention it states that “the coastal State may, without discrimination in form or in fact among foreign ships, 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, including weapons exercises. Such suspension shall take effect only after having been duly published.”[29]

RULES AND REGULATIONS CONCERNING WAR SHIPS AND OTHER NON-TRADING SHIPS

Special laws are made in relation to the non-compliance by the warships in relation to the laws of the costal state. Article 30[30] of 1982 UN Convention states that in case where a warship do not obey the rules and regulations set up by the coastal state concerning the passage through their “territorial sea” and also do not act according to the compliance made by the state, then in this case the warships and the non-treading ships are ordered to leave the territorial sea and this order is made by the Costal state.

Article 31[31] of 1982 UN Convention also revolves around the provisions that are made in compliance to the war ships and other non-trading ships. And it states that the flag state of the ship must bear global obligations in case of any loss or damage that might take place to the costal state due to the noncompliance shown by the warship or other non-treading ships to the rules and regulations of the coastal state regarding the passage through territorial sea or with the laws of UN Convention or rules of the international law. It is always the duty of the coastal state to keep the passage innocent.[32]

INDIA’S POSITION ON TERRITORIAL WATERS

In India article 297[33] of Indian Constitution generally governs the laws of the sea. It also monitor the laws on water, continental shelf, and maritime zone.[34] As studied above maritime zone law defines India’s authority across the waters, sea beds and it also includes the land and airspace which is present above this water. Just like most of other countries India’s “territorial water” extends to “12 nautical miles” from the baseline.[35] All foreign vessels have the right to exercise their right of innocent passage across these territorial water.

CONCLUSION

In 1982 the UNCLOS created a set of rules and laws with the main motive of comprehending command to govern the rights of the states with respect to the world’s ocean.  In today’s world the laws of the sea plays a very important role. It helps the country to have its privacy, help the country to maintain peace across its territorial sea.  But there are certain countries like China that do not follow the rule of 12 nautical miles for their territorial sea. There are some reported cases in which the right of innocent passage was not followed and the ones that got inside the territorial sea were been killed. It is expected that in near future these laws can get stricter. That will eventually help all countries across the globe. All in all the laws of the sea help a lot in the smooth functioning of the country.

Author- Amrit Behera,

Symbiosis Law School, Hyderabad.

BIBLIOGRAPHY

1.      United Nations, Articles concerning the Law of the Sea with commentaries, 1956, https://legal.un.org/ilc/texts/instruments/english/commentaries/8_1_8_2_1956.pdf (last visited May 6, 2021).

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