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An Introduction to Zones of Maritime Jurisdiction (1 of 3)

International law of the sea

Douglas Guilfoyle

on 28 August 2015

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Transcript of An Introduction to Zones of Maritime Jurisdiction (1 of 3)

An introduction to zones of maritime jurisdiction
Douglas Guilfoyle
While the oceans cover two thirds of the world's surface, much of it falls under national jurisdiction.
However, jurisdiction is not the same thing as sovereignty. Jurisdiction may confer limited rights to regulate particular subject matters, such as fishing or drilling for oil.
Coastal states thus have different powers in different zones of the ocean.
Image © UNESCO
In general, states have jurisdiction over a variety of economic activities out to 200 nautical miles from shore, and may have rights over the seabed (the continental shelf) some distance beyond that.
The result is that much of the oceans are subject to some form of State authority.
Real maritime charts can be complicated ...
Internal waters
Key question: the extent of coastal state jurisdiction over foreign vessels in internal waters.
Basic principle: internal waters are subject to the full sovereignty of the coastal state.
Coastal states may regulate access to ports, and impose conditions: Art 25(2), UNCLOS.
Ships in distress have a right of access to port, but not to disembark passengers.
The territorial sea
A coastal state has sovereignty over its territorial sea, subject to the rules of innocent passage.
As innocent passage applies only to ships passing through the territorial sea without calling at port, inbound and outbound vessels are subject to the criminal jurisdiction of the coastal state (Article 25, UNCLOS).
The coastal state can still act regarding matters such as: safety and traffic separation, fishing and environmental conservation, customs and immigration law (Article 21, UNCLOS).
The right of innocent passage in the territorial sea: Arts 17-32, UNCLOS
Innocent passage allows a right of navigation, which can be lost if
non-innocent acts are committed.
What acts are not innocent?
A list in Article 19 of UNCLOS includes: various military activities, any exercise with weapons, certain acts of information gathering, fishing, research or survey activities, and "any other activity not having a direct bearing on passage".
Do warships have a right of innocent passage?
UNCLOS states that innocent passage is one of the "rules applicable to all ships".
Further, some of the non-innocent
activities in article 19 are military.
Some States, however, require prior notification of warship transit.
Can a coastal State exercise jurisdiction over a vessel engaged in innocent passage?
Article 27, UNCLOS: a coastal state generally should not exercise criminal jurisdiction, but cases where it may do so include crimes that disturb the peace of the coastal State or the territorial sea. (Warships are immune.)
Not covered here: the law of the continental shelf.
Maritime zones
Zones under territorial sovereignty:
internal waters and the territorial sea

The next installment will cover zones of jurisdiction only:
the contiguous zone and EEZ.

Innocent passage must also be continuous and expeditious. A ship may not "hover" in a territorial sea except in cases of distress, rescue etc. (Article 18, UNCLOS)
This completes our tour of zones under sovereign jurisdiction ...
Zones of sovereign rights: the contiguous zone and exclusive economic zone (EEZ)
Creative Commons Attribution 3.0 Australia. © Commonwealth of Australia (Geoscience Australia) 2010.
The contiguous zone
The contiguous zone is a maritime zone adjacent to the territorial sea. It may extend to a maximum limit of 24 nautical miles from baselines.
In this zone a coastal state may prevent and punish infringements of its customs, fiscal, immigration and sanitary laws and regulations occurring within its territory or territorial sea.
Obviously, this will cover matters such as the smuggling of drugs or migrants. In this context, "sanitary" refers to things such as Australia's strict quarantine laws on the importation of plants and animals.
There are two interpretations of what article 33 allows: a strict, textual interpretation; and a more liberal interpretation.
A strict interpretation emphasises that article 33 does not give a State legislative power to extend its customs, etc laws into the contiguous zone.
The contiguous zone is an enforcement zone: a state may only take action against ships which have already committed an offence in its territorial sea or territory.
Article 33(b) thus applies either to outbound ships (leaving after having committed some offence) or "hovering" vessels which have used small boats to communicate with the shore (e.g. to complete a smuggling offence).
Article 33(1), UNCLOS: In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.
Paragraph (a) would allow preventative measures such as inspection and warning regarding inbound ships. It could not, however, justify arrest because no offence would yet have been committed.
The more liberal interpretation would allow states to extend their relevant legislation into the contiguous zone. Breaches of customs, fiscal, immigration and sanitary laws can be committed in that zone and result in enforcement measures such as boarding, inspection and the rest of a vessel and its crew.
Some states do take the liberal view in their national legislation, including India, Pakistan and Sri Lanka.
The contiguous zone also provides jurisdiction over archaeological objects: article 303 (2), UNCLOS.
Art. 303(2): In order to control traffic in [archaeological and historical] objects, the coastal State may, ... presume that their removal from the seabed in the [contiguous] zone ... without its approval would result in an infringement within its territory or territorial sea of [its] laws and regulations [under Article 33].
As Tanaka explains this provision creates two legal fictions. First, removal of archaeological artefacts is treated as an infringement of the laws that may be applied in the contiguous zone. Second, such removal is treated as if it occurred in the territorial sea. (Tanaka, International Law of the Sea, 2012.)
The result is that the state has full legislative and enforcement jurisdiction over the removal of archaeological artefacts out to 24 nautical miles from its baselines.
Waters within "baselines": harbours, bays, ports, rivers, etc
The EEZ may extend up to 200 nautical miles from a coastal state's baselines.
To understand a State's rights and powers in the EEZ we need to understand four concepts:
sovereign rights;
the preserved freedoms of third States; and
residual rights.
Article 56(1): In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the

natural resources, whether living or non-living,

of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to

other activities for the economic exploitation

and exploration of the zone, such as the
production of energy from the water, currents and winds

Article 56(1): In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds ...
Note that these powers are limited: they can only be exercised in respect of these subject matters.
Under Articles 60 and 246, UNCLOS the coastal state has jurisdiction in the exclusive economic zone over artificial islands, economic installations and structures, and marine scientific research conducted in the water column or on the continental shelf.
In particular, we should note that the coastal state has exclusive authority to authorise the construction of artificial islands and other structures, and its laws apply on board them.
Sovereign Rights
Third States
Residual rights
Importantly, other states retain the rights they would have on the high seas of navigation or overflight, and the right to lay submarine pipelines and cables.
Indeed, under article 58, the law of the high seas (Articles 88 to 115, UNCLOS) continues to apply in the EEZ to the extent it is not incompatible with the rights and jurisdiction of the coastal state.
Thus, for example, piracy on the high seas can be committed in an EEZ.
However, third States when navigating in the EEZ must have due regard for the rights of the coastal State and comply with its laws and regulations (regarding those matters where it has rights or jurisdiction).
What happens when the law of the sea has not allocated jurisdiction over a particular activity in the EEZ to either the coastal state or navigating states?
Article 59 appears to provide that disputes in such cases should be resolved on a case by case basis.
Art 59: In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the [EEZ], and a conflict arises ... [it] should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
Thus a coastal state has sovereign and exclusive rights regarding the use of living and nonliving resources, and energy resources, within the zone.
(Exclusive Rights)
Sovereign Rights
These are exclusive rights in the sense that if the coastal state does not exercise them, no other state may do so with out its permission.
These are sovereign rights in that a state may take action to enforce its laws regarding these matters against foreign vessels within the zone (e.g. by arresting vessels fishing illegally).
The Exclusive Economic Zone (EEZ)
However, this formula is vague and the International Tribunal for the Law of the Sea has been reluctant to find that coastal states have powers going beyond those listed in the Convention (MV Saiga No 2).
The next installment will cover the high seas.
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