THE LEGAL STATUS OF THE TERRITORIAL SEA

Section: Part II, Articles 2-33
Full text with footnotes

The actions of states, whether on a national or an international scale, are based on the principle of sovereignty. When two or more sovereign subjects of international law meet, questions of jurisdiction arise, i.e., who has the right and obligation to act. The main purpose of the Convention is to define and regulate such questions relevant to the sea. A central point in this respect concerns how far from the coast the influence of a coastal state extends.
For the average person, the sea begins at the beach, the coastline of the mainland, where realization that another world begins is unavoidable: a different environment of wind, waves, tides, special means of communications, fishing, and so on. This perception of the sea is almost identical with that part of the planet which the Convention seeks to regulate. However, the Convention does not necessarily see the natural coastline as the limit of the sea; instead, an artificial line, the baseline, is drawn, as will be described in the next section. Within this artificial line all water areas (which are known as internal waters), the mainland, and islands are not subject to the Convention, and the state can exercise its sovereignty as provided elsewhere in international law. Adjacent to this baseline is a belt of sea known as the territorial sea, which falls within the area governed by the Convention. Every state can establish a territorial sea with a maximum breadth of twelve nautical miles, measured from the baseline . Nonetheless, the importance of the Convention for this area is somewhat lessened by the fact that the Convention itself declares that the sovereignty of the coastal state extends over the territorial sea, including the air space over the sea as well as its bed and subsoil . This also applies to archipelagic waters . The sovereignty of a coastal state as well as that of an archipelagic state  is limited only by the fact that this sovereignty must be exercised in accordance with the Convention and with international law . However, the Convention retains precedence with respect to matters of navigation which are of considerable importance:
(1) Technical regulations for drawing the artificial baseline and extending the territorial sea by a   
      maximum of twelve nautical miles measured from the baseline (Articles 3-16);
(2) Passage through the territorial sea (Articles 17-32), including suspension of navigation in
      certain areas (Article 25, Paragraph 3); Safety zones around scientific research installations
     (Article 260);
(3) Passage through straits (Articles 34-45); using the territorial sea of states bordering the strait 
      (Article 37)
(4) Passage through archipelagic waters (Article 2, Paragraph 1; Articles 52-54);
(5) Pollution from vessels (Articles 194, Subparagraph 3(b), 211, 217-234).
The Convention also retains precedence in pollution matters, requiring states parties to protect and preserve the marine environment  in particular by controlling
(1) Pollution from land-based sources (Article 207),
(2) Pollution from sea-bed activities (Article 208),
(3) Pollution by dumping (Article 209), and
(4) Pollution from and "through the air (Article 210),
and holds the coastal state responsible for the fulfilment of its international obligations . There are some further regulations imposing limits on the state's sovereignty, but they are generally of less importance .
The Convention jurisdiction thus described is subject to compulsory dispute settlement provided by the Convention .



THE RIGHTS OF FOREIGN NATIONALS IN INTERNAL WATERS AND THE TERRITORIAL SEA
Section: Part II, Articles 2-33

NB: For vessels the flag state is in general obliged
- to exercise its jurisdiction and control in administrative, technical, and social matters (Article 94), and
- to ensure compliance with international pollution standards (Articles 211, 217).

Reprint from 1988 Edition
THE BASELINE

Section: Part II, Articles 2-33
The baseline is an artificial line from which zones of jurisdiction as provided by the Convention - territorial sea , contiguous zone , exclusive economic zone , and continental shelf - are measured. The coastal state itself has to determine the baseline, which must then be shown on charts or defined by adequate geographical co-ordinates and given adequate publicity . Particular care must be taken where the establishment of the baseline could have an effect on the rights of a state with an opposite or adjacent coast ; however, it should be noted that a state can declare its non-acceptance of dispute settlement procedures for disputes arising from the delimitation of sea boundaries .  The baseline can be determined by applying the technical provisions of the Convention in three steps:
First Step: The normal baseline is the low-water line along the coast  or, in the case of an island or atoll, the seaward low-water line of any reef  for delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast ;
Second Step: Certain appropriate outmost points and marks such as
-low-tide elevations no further than twelve nautical miles from the mainland
-low-tide elevations upon which installations which are permanently above sea-level (e.g., lighthouses) have been built , even where the installations are more than twelve nautical miles from the mainland,             
-mouths of rivers ,
-low-water marks of the natural entrance points of bays if the distance between such marks does not exceed twenty-four nautical miles (except in cases of so-called historic bays)  and
-appropriate points along a deeply indented coastline or a fringe of islands close to the coast  can be used for establishing the baseline.
Third Step: The following significant circumstances must be taken into account:
-Roadsteads used for shipping and which would otherwise be wholly or partly outside the territorial sea are part of the same;
-low-water elevations without permanent installations  beyond the breadth of the territorial sea have no territorial sea of their own;
-islands have their own territorial sea
-off-shore installations and artificial islands do not possess the status of islands and do not have any effect on the establishment of the baseline .
The coastal state is to deposit charts or lists showing the baseline with the Secretary-General of the United Nations .


PASSAGE THROUGH THE TERRITORIAL SEA

Section: Part II, Articles 2-33

This chapter deals with the question as to what extent the sovereignty  of a coastal state in its territorial sea may be restricted or set aside to permit unhindered passage of foreign vessels through this zone.
In its attempt to find an acceptable solution to the conflict of interests inherent in this question, the Convention uses the concept of innocent passage . The term "innocent passage" is vaguely described rather than precisely defined. Transitory navigation through the territorial sea -passage  - must not be prejudicial to the peace, good order or security of the coastal state . A catalogue of activities  can be used as a guide in determing whether passage is innocent or not. With the exception of a general clause which reads, "any other activity not having a direct bearing on passage  the clauses cover activities which pose a serious and unacceptable threat to the coastal state (e.g., practice with weapons, wilful and serious pollution). The general clause must be read with this in mind and applied only in the case of a threat which, while not specifically listed, would be of a weight equal to that of the activities given. In addition, the general term "innocent passage" must be interpreted and applied in the light of national law which has been implemented by the coastal state. Every coastal state can adopt laws regarding the safety of navigation, laying of submarine cables, resources, fishing, environmental protection, scientific research, prevention of infringement of customs, fiscal, immigration, or sanitary laws  and prevention of pollution  as well as implement sea lanes and traffic separation schemes  or suspend temporarily the right of innocent passage in specified areas of its territorial sea , subject only to the restriction that any such measures must be in conformity with the Convention and international law relating to "innocent passage" . The sovereignty of the coastal state in establishing law is also limited to the extent that the imposed requirements may not have the practical effect of hampering, denying, or impairing the right of innocent passage  or discriminate against the ships of any state or against ship's carrying cargoes to, from, or on behalf of any state .
Furthermore, the concept of innocent passage does not apply to ships which are only present in the territorial sea, however innocent such presence might be. As the term itself states, the foreign vessel must be in passage, i.e., in transit through the territorial sea between any two points not in this zone  and the passage must be continuous and expeditious  a condition which does not, however, exclude stops for navigational purposes and other acceptable reasons . Even if these conditions have been fulfilled, there remain exceptions to the right of innocent passage with respect to criminal and civil jurisdiction of the coastal state on foreign vessels, which can be summarized as follows: a coastal state may not exercise its jurisdiction on board a foreign vessel unless there is a serious threat to the coastal state , measures for the suppression of drug traffic are necessary , requests for aid have been made , or there is a particular situation in which the vessel has left the internal waters of the coastal state  and is still in the territorial sea and action by the coastal state is warranted .  If the vessel cannot be stopped in the territorial sea, further action may be taken in accordance with the provisions for hot pursuit.


SOVEREIGNTY OF THE COASTAL  STATE (Article 2)        RIGHT OF INNOCENT PASSAGE (Article 17)
 
First Restriction
   The coastal state may only adopt laws as given
   in Article 21

 
 
First Restriction
   Vessel must be in passage, continuous and
   expeditious (Article 18)

Second Restriction
   The coastal state may not regulate the design, construction, manning, or equipment of foreign vessels (Article 21, Paragraph 2), but may implement other pollution measures (Article 194, Subparagraph 3(b)
Third Restriction
    Coastal state is to make public all applicable
    laws (Article 21, Paragraph 3) and any dangers
    to navigation (Article 24, Paragraph 2)
Fourth Restriction
    Regulations may not be adopted for the
    purpose of or have the effect of hampering
    innocent passage (Article 24, Subparagraph 1(a))
Fifth Restriction
   Coastal state is to abstain - in form or fact - from
   discriminatory measures against any ship   
   (Article 24, Subparagraph 1(b))
Sixth "Restriction
   Coastal state may exercise its jurisdiction in criminal and civil cases only as specified in Articles 27 and 28
Seventh Restriction
    Charges may not be levied by reason only of
    passage (Article 26, Paragraph 1)
Eighth Restriction
-  Warships and other government non commercial vessels are immune (Article 32)
- Coastal state required to allow these vessels passage if they comply with law and regulations of coastal state (Article 30)
- If laws and regulations disregarded by these
     vessels, coastal state must request compliance
     before acting (Article 30)

 
 
Second Restriction
    A certain number of activities and activities not having a direct bearing on passage are not
     regarded as innocent (Article 19)
Third Restriction Coastal statp may adopt
    regulations in the areas enumerated in Article
    21 (Article 211, Paragraph 4, Pollution; Article 260, Safety Zones)
Fourth Restriction Coastal state may establish
    sea lanes and traffic
  . separation schemes (Article 22)

Fifth Restriction Nuclear-powered ships and ships carrying dangerous materials must carry documents and take established precautions (Article 23)
Sixth Restriction
    Temporary suspension of passage in specific
    areas must be accepted (Article 25,Paragraph 3)
Seventh Restriction Coastal state may prevent
     passage which is not innocent (Article 25,
  Paragraph 1); may prevent breach of conditions for               admission to its internal yaters (Article 25, Paragraph 2)
Eighth Restriction
     Arrest and investigation can take place as specified in Articles 27 and 28 (e.g., Art, 73: 220)
Ninth Restriction Charges may be levied for
     specific services rendered (Art 26, Paragraph 2)
Tenth Restriction
     Submarines must navigate on surface and show
     flag (Article 20)
Eleventh Restriction
    Warships, etc., must upon request of coastal
    state leave territorial sea immediately
     - if they do not comply with laws and Regulations
     - and have been requested to do so (Article 30)

THE CONTIGUOUS ZONE

Section: Part II, Articles 2-33

By means of a formal proclamation made public to the international community, a coastal state may establish a zone contiguous to the territorial sea and extending a maximum of twenty-four nautical miles from the baseline.  Consequently, the breadth of the contiguous zone itself depends on the distance proclaimed and on the breadth of the territorial sea. If the territorial sea of the coastal state has the maximum breadth of twelve nautical miles , then the contiguous zone can have a maximum breadth of only twelve nautical miles.
The contiguous zone enjoys independent legal status only as long as the coastal state has not proclaimed an exclusive economic zone  exceeding the outer limits of the contiguous zone. If an exclusive economic zone is established, it begins beyond and adjacent to the territorial sea , with the resultant effect that the contiguous zone becomes a part of the exclusive economic zone, and all provisions which apply to the latter also apply completely and fully (as there are no exceptions) in the contiguous zone. The principle of freedom of navigation applies in this zone as well as elsewhere  outside the territorial sea, but other states are to have due regard for the rights of the coastal state in the exclusive economic zone and to comply with its laws and regulations .
The rights derived from this provision are of two types: "prevention"  and "extended power" . Rights of "prevention" mean that the coastal state exercises police force limited to "control" necessary to prevent infringements of customs, fiscal, immigration, or sanitary laws in the territorial sea or territory of the coastal state, including boarding and searching and even prohibiting the foreign vessel from entering the territorial sea. If there is no such infringement, the coastal state has no further rights. "Extended power" to apply national criminal law goes into effect if there has been an infringement of the laws listed above within the territory or territorial sea of the coastal state. In many instances of such infringements, coastal states would also be able to exercise the right of hot pursuit.   There seems to be hardly any need for the concept of a contiguous zone, particularly now that the territorial sea has been extended from three to twelve nautical miles.
Finally, it is worthy of mention that the Convention unexpectedly and rather curiously grants' special status to the contiguous zone in one other area: in order to control traffic in historical and archaeological objects, the coastal state may presume that the removal of any such objects from the contiguous zone without the state's approval would violate the laws mentioned in Article 33, and the state may act accordingly.   The law of salvage and other international rules and agreements remain unaffected .





THE CONTIGUOUS ZONE

Section: Part II, Articles 2-33

Within the contiguous zone, the coastal state is invested with the power
- to prevent infringement of its customs, fiscal, immigration, or   sanitary laws and regulations
  within its territory or territorial sea (Article 33, Subparagraph 1(a));
-        to punish infringement of the above laws and regulations committed within its territory or territorial sea (Article 33, Subparagraph 1(b)).

 
Activity
Rights of Foreign Nationals in the Contiguous Zone
Full rights (Article 58, 79), consent of coastal state for routing
required (Article 79, Paragraph 5)

Navigation
Full rights of over-flight
Full navigation rights if compatible with Convention (Articles 58,
Paragraph 1, and 87; 58, Paragraph 2, and 88-115)
Restricted by Article 33 (see above) in, general only; boarding and
search by coastal state only to prevent and punish infringement of
specific coastal state laws
Removal of historical and archaeological objects only with approval of
coastal state (Article 303, Paragraph 2)

 
 
 
Consent of coastal state is required when economic zone has been
established (Article 246)

Scientific
Research

Fishing
No rights after establishment of exclusive economic zone
(Exceptions: Article 62, Paragraph 2)

Over-flight
 
 
No rights (Rights of coastal state over continental shelf need not be
claimed) (Article 76, Paragraph 3)
Observance of
environmental
legislation


Must observe sanitary laws of coastal state (Article 33); must observe
pollution laws (Part XII) applicable in exclusive economic zone

Mining
Laying of Cable