maritime zones under unclos rights and jurisdictions introduction

Proshanto K. Mukherjee
Director, Postgraduate Maritime Law Programme
Professor of Maritime Law
Lund University, Sweden
Former Vice President (Research)
Director of Doctoral Programmes
ITF Professor of Maritime Safety and Environmental Protection,
World Maritime University, Malmo
The law of the sea is a specialized branch of public international law;
Its historical roots are in the Roman law exemplified by the doctrines of res
nullius, res publicus and res communis
The customary international law of the sea was first codified through the four
Geneva Conventions of 1958; eventually, culminating into the comprehensive
UN Convention on the Law of the Sea, 1982 (UNCLOS)
Land and sea has traditionally been divided by a line represented by the low
water line (LWL)
A belt of water (originally 3 nm wide) seaward of the LWL comprises the
territorial sea beyond which lies the high seas
Under UNCLOS, there are several maritime zones appertaining to the coastal
The high seas are beyond the limits of any national jurisdiction
Maritime Zones
R.R. Churchill and A.V. Lowe, 1999; see supra, note 1 at p.30 8
With one exception relating to the outer limit of the continental shelf, all
maritime zones are measured from the baseline which was originally associated
with the measurement of the breadth of the territorial sea
Under article 5 of UNCLOS (in Part II) there are two kinds of baselines - the
normal and the straight baseline
The former is “the low water line along the coast as marked on large scale charts
officially recognized by the coastal State” referred to as the sinuosity of the
coast line, a term which reflects the tidal phenomenon of two high waters and
two low waters in 24 hrs occurring alternately at 6-hour intervals
The times of high and low water are dictated by the relative positions of the sun
and the moon vis a vis the earth, the gravitational pull of the moon being
stronger because of its proximity to the earth
Spring tides occur when the sun and the moon are on the same side of the earth,
and neaps occur when they are on opposite sides
Where the coastline configuration is not amenable to the use of normal
baselines, namely where the coastline is deeply indented or “jagged” (see
Anglo-Norwegian Fisheries Case [1951] ICJ Rep 116) or numerous islands
obscure the land-sea divide, under article 7 straight baselines can be used
However, the straight baselines must not deviate from the general direction of
the coastline
Sea areas landward of the baseline must be closely linked to the land domain to
have the status of inland waters
Straight baselines cannot be drawn from low tide elevations unless there is a
permanent structure visible above sea level, and they cannot be so drawn as to
cut off the territorial sea of another coastal state from its EEZ or the high seas;
Bay closing lines are subject to the semi-circle rule and cannot be more than 24
nm long (Article 10)
Internal Waters
In UNCLOS Part II article 8 (1), “internal waters” is defined as “waters on
the landward side of the baseline of the territorial sea”
The coast state enjoys the same complete territorial sovereignty over the
internal waters as it does over its land domain
Mostly waters in a port area are part of internal waters because the baseline is
usually drawn along the outer perimeter of the port
Although, there is no international consensus, arguably a foreign ship has no
inherent right to enter a port and must obtain inward clearance (see however,
the Aramco Arbitration of 1958)
Also under customary international law, a ship in distress is entitled to port
entry if human life is at risk
Despite the virtually unlimited jurisdiction, as a matter of national policy,
unless the peace and good order of the port is detrimentally affected, the
coastal state will not assert jurisdiction over a visiting ship;
Territorial Sea
The territorial sea is the seaward extension of the land territory of the coastal
state (Part II)
Under UNCLOS its breadth is 12 nm measured from the baseline. Previously
under customary law and state practice it was 3 nm based on the “cannon-shot
rule” except in the Scandinavian countries where it was 4 nm
In the territorial sea, the coastal state exercises full sovereignty subject to the
right of innocent passage of foreign ships
In Article 18, passage is defined; essentially it must be “continuous and
expeditious” but stopping and anchoring is part of passage if it is incidental to
ordinary navigation. Exception is also made for force majeure or distress.
Innocent passage is elaborated in Article 19 which provides that "[P]assage is
innocent so long as it is not prejudicial to the peace, good order or security of
the coastal state"
Territorial Sea
In paragraph 2 twelve items are specifically mentioned as activities that are not
considered to be innocent and are prohibited
There is no prohibition on warships exercising the right of innocent passage so
long as the vessel does not engage in any military exercise or practice with
Under Article 21, a coastal state may enact legislation relating to innocent
passage on certain enumerated matters, but not on design, construction,
manning and equipment of foreign vessels in excess of international rules or
Coastal state jurisdiction in the territorial sea is the same as on land but in the
case of ships there can be dual or concurrent jurisdiction. Coastal and flag state
jurisdictions are not mutually exclusive in public law matters; there is no
concept of “double jeopardy”. The same applies to internal waters
Contiguous Zone
UNCLOS Article 33 (in Part II) is the only provision; paragraph 1 contains the
definition which simply states that it is “a zone contiguous to the territorial
There are four specific subject matters falling under this regime, namely
customs, fiscal, immigration and sanitary laws.
Customs and immigration matters deal with contraband and tariff restrictions
and rights of entry and departure; fiscal and sanitary laws deal with taxation
issues and quarantine restrictions.
An important aspect of this regime is its application to archaeological and
historical objects found at sea; Under Article 303 a coastal state has the right to
apply Article 33 in respect of removal of such objects from the seabed.
Economic Exclusive Zone
The EEZ is a creation of UNCLOS (Part V) but had already acquired the status
of customary law through state practice before the convention entered into force
It is defined in Article 55 as “an area beyond and adjacent to the territorial sea
… under which the rights and jurisdiction of the coastal State and the rights and
freedoms of other States are governed by the relevant provisions of this
The width of the EEZ is 188 nm measured from the outer limit of the territorial
sea to 200 nm from the baseline
The origin of the EEZ is rooted in the Latin American notion of the patrimonial
sea but is veiled in obscurity. It entered UNCLOS through a proposal made by
Kenya during negotiations leading up to the adoption of the Convention
It was a compromise reached between two groups of countries; one which
favoured a wide territorial sea and the other which was against any extension of
coastal State jurisdiction into the high seas
Economic Exclusive Zone
There is no inherent right to a EEZ; a coastal State must make a claim through
a declaration or proclamation or through enactment of domestic legislation
Arguably, because a coastal State’s right to claim an EEZ is considered to be a
part of customary international law, there is no need for any express
declaration to that effect
The EEZ is neither a part of the territorial sea nor the high seas and is therefore
rightly referred to as a regime sui generis
The EEZ consists of the superjacent waters in the zone as well as the seabed
and subsoil underlying the waters
Under Article 56, in the EEZ the coastalState enjoys “sovereign rights for the
purposes of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living…”
It is a right that is lower in status than sovereignty and is a creation of
Economic Exclusive Zone
The coastal State has no sovereign rights over resources that are not “natural”
such as wrecks and other artificial remains in the seas that are subject to the law
of salvage
In the EEZ, under Article 56, the coastal State also has jurisdiction with regard
to  the establishment and use of artificial islands, installations and structures;
 marine scientific research;
 the protection and preservation of the marine environment
The second and third items mentioned above are covered by Parts XIII and XII
of UNCLOS respectively
Continental Shelf
The regime of the continental shelf in UNCLOS Part VI has its roots in the
Truman Proclamation of 1945 in which President Truman stated that “the natural
resources of the subsoil and seabed of the continental shelf beneath the high seas
but contiguous to the coasts of the United States as appertaining to the United
States, subject to its jurisdiction and control”
The continental shelf is both a legal doctrine as well as a geological
phenomenon and is described as “the natural prolongation of the continental
land mass” taking account of the marine geological concept of features being
either “oceanic” or continental
As depicted in the diagram above the continental shelf consists of three
components, namely, the shelf, the slope, and the rise collectively known as the
continental margin and is reflected in the definition in Article 76
Seaward of the continental margin lies the abyssal plain which is a part of the
deep seabed under UNCLOS
Continental Shelf
The outer limit of the continental shelf under the 1958 convention was
characterised by the “limit of exploitability” beyond the 200-meter isobath
This was considered to be unsuitable from a scientific viewpoint and the
extremity of the outer limit is now governed by Article 76
In the case of a geologically narrow shelf state, the outer limit is fixed at 200
nm from the baseline regardless of the geological configuration of the shelf
In the case of a geologically wide shelf state, the options depicted in the “Irish
formula” which are quite complex are to be applied (see paragraphs 4-7)
The limits are to be determined by each coastal State by applying Article 76
and submitting them to the Commission on the Limits of the Continental Shelf
in accordance with paragraph 8
The Commission must make recommendations based on which the coastal
states can establish the limits which will then become final and binding.
Continental Shelf
Under Article 77, in the continental shelf the coastal State enjoys sovereign
rights over the natural resources same as under the EEZ but the rights “do not
depend on occupation, effective or notional, or on any express proclamation”
and corresponding jurisdiction to exercise those rights.
These rights are exclusive to the coastal State; no other state can exercise any
rights over unexplored natural resources or undertake any activities relating to
them without the express consent of the coastal State.
In the extended continental shelf sedentary species are subject to coastal State
The superjacent water column above the continental shelf up to 200 nm
belongs to the EEZ regime and beyond that to the high seas regime
In respect of non-living natural resources in the extended continental shelf, the
coastal State must make payment or contributions in kind for the benefit of
developing states in accordance of Article 82.
High Seas
Part 7 of UNCLOS deals with High Seas which is not a maritime zone of a
coastal state but is of crucial significance in respect of the coastal State’s rights
and jurisdiction
The regime of High Seas under UNCLOS is based on the doctrine of freedom of
the seas or mare liberum enunciated by Hugo Grotius and also on the Roman law
doctrine of res communis or res publico
There are six freedoms of the High Seas which are set out in Article 87; they
comprise navigation, overflight, laying of submarine cables or pipelines,
construction of artificial islands and installations, fishing and scientific research
Article 88 expressly provides for the High Seas to be reserved for peaceful
Articles 91 to 94 relate to the subjects of ship nationality including the doctrine of
genuine link, the legal notion of flag and duties of flag states
High Seas
Articles 101 to 108 deal with the topical issue of high seas piracy which is
considered to be a jus cogens (peremptory norm of international law) crime.
With respect to piracy, universal jurisdiction is applicable in the high seas; in
other words, all states have the right to take action and the duty to cooperate in
the repression of piracy
The coastal State has no jurisdiction in the high seas except where the doctrine
of hot pursuit is applicable under Article 111 or under the Intervention
Convention of 1969 where there is imminent threat of pollution to its coast line
or coastal interests
The seabed, ocean floor and subsoil underlying the water column of the high
seas is known as the Area which is defined in Article 1 and is subject to the
legal regime under Part XI
Legislative and Enforcement Jurisdiction
Concept of Jurisdiction in National and International Law: Vertical and Horizontal Dimensiosn
competence to make laws
 by legislature, or
 by courts;
competence to enforce laws
 administratively or in practice,
 judicially, i.e., through court action, or
 through diplomatic process
Maritime Zones and Regimes
Legislative jurisdiction may be limited to
ratione loci,
ratione personae, or
ratione materiae
application of legislation subject to domestic rules of statutory construction which prohibits extraterritorial application of domestic law unless expressly provided otherwise.
Legislative and Enforcement Jurisdiction
Enforcement jurisdiction may be
co-existent with legislative jurisdiction, or
independent of legislative jurisdiction
Application of law may not automatically imply enforceability; the latter may be limited in scope.
Territorial Sea
Sovereignty in territorial sea viewed as a “bundle of servitudes” or alternatively as plenary
jurisdiction of the coastal State.
The former concept subscribes to identified subject matters of jurisdiction
such as navigation, fisheries, security, etc.
Under the doctrine of internal economy general civil and criminal laws of coastal States may
not apply to foreign ships in the territorial sea or ports.
Coastal State right of intervention is exercised only at the request of the flag State; i.e.,
coastal State enforcement jurisdiction is limited but there is full legislative jurisdiction.
Plenary jurisdiction implies comprehensive jurisdiction to make and enforce laws. No limitations
where plenary jurisdiction claimed in applying sovereignty
Legislative and Enforcement Jurisdiction
UNCLOS Article 21 (innocent passage) and Article 42 (transit passage)
Enforceability of convention requirements through domestic legislation giving
effect to convention provisions is the preferred route.
Otherwise, resort must be had to diplomatic channels for breach of treaty
IMO conventions such as SOLAS, MARPOL, LOADLINES, etc. provide for flag
State enforcement.
Contiguous zone
Article 33 provides for enforcement jurisdiction only for offences committed within
territorial sea.
Article 27 prohibits arrest of foreign vessel passing through territorial sea for
offences committed prior to vessel’s entry into the territorial sea.
Under customary law of piracy, states other than flag States have both legislative as well
as enforcement jurisdiction over ships on the high seas.
The new law of the sea as depicted through UNCLOS reflects a functional
approach to maritime zones as distinguished from the traditional geographical
As stated by Churchill and Lowe "[I]ncreasingly, ... the law of the sea is being
developed along functional, rather than zonal lines“
The functional approach is characterised by particular uses of the seas such as
navigation, fishing and marine scientific research and also by the impact of
pollution on the marine environment
The zonal concept in the law of the sea does not exist in isolation. Its
significance lies in the various usages of each zone where the functions and
activities of the zone take primacy over its extremity
However, both approaches are intertwined and interrelated and they work
together in harmony