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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 2 The objects of international law, Ch.5 State territory, The Territorial Sea and the Contiguous Zone

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

Subject(s):
Territorial sea — UNCLOS (UN Convention on the Law of the Sea) — Baselines — Fisheries — Islands and artificial islands — Ports — Exclusive economic zone — Innocent passage — Warfare, sea — Ships / vessels — Sovereignty

The Territorial Sea and the Contiguous Zone

Smith, ii, pp 124–254 Gidel, Le Droit international public de la mer (vol ii, 1932) and (vol iii, 1934) Colombos, The Law of the Sea (6th ed, 1967), ch III Crocker, The Extent of the Marginal Sea (Collection of Official Documents and Views of Representative Publicists) (Washington, 1919) Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927) Masterson, Jurisdiction in Marginal Seas (1929) Harvard Draft Convention (and Comment), AJ, 23 (1929) Gidel, Hag R, 48 (1934), ii, pp 133–278 Meyer, The Extent of Jurisdiction in Territorial Waters (1937) Schucking, de Magalhaes, and Wickersham, Report for League Codification Committee, AJ, 20 (1926), Special Suppl, pp 62–147 (an exhaustive study) Gidel, Hag R, 48 (1934), ii, pp 133–278; April, Special Number, pp 243–365 Conference for the Codification of International Law, Bases of Discussion, ii, Territorial Waters Walker, BY, 22 (1945), pp 210–31 Florio, Il mare territoriale a la sua delimitazioni (1947) Fitzmaurice, BY, 31 (1954), pp 371–76, 381–411, 416–28 Olives, Mar territorial y derecho moderno (1955) Kent, AJ, 48 (1954), pp 537–53 Oda, ICLQ, 4 (1955), pp 415–25; Reinkemeyer, Die Sowjetische Zwölfmeilenzone in der Ostsee u die Freiheit des Meeres (1955) Capotorti, Il regime guiridico dei mari (1957), pp 158–257 Colombos in Symbolae Verzijl (1958), pp 118–23 Feron, Le Droit international de la mer (vol I, 1958), pp 29–62 O’Connell, BY, 34 (1958), pp 199–259 (for Australian coastal jurisdiction); also International Law in Australia (1965), pp 246–91 McNair, Opinions, i, pp 330–47, 363–80 Oudendijk, Status and Extent of Adjacent Waters: A Historical Orientation (1970) Fitzmaurice, ICLQ, 8 (1959), pp 73–90 Padwa, ICLQ, 9 (1960), p 628 McDougal and Burke, The Public Order of the Oceans (1962) Bardonnet, RG, 66 (1962), p 34 Alexander, The Law of Offshore Boundaries and Zones (1967) Scerni, Hag R, 122 (1967), iii, 107–71 Pharand, Can YBIL, 6 (1968), p 3 (on innocent passage in the Arctic) Matte, de la Mer territoriale à l’air territorial (1965) Butler, The Law of Soviet Territorial Waters: A Case Study of Maritime Legislation and Practice (1967) Poulantzas, The Right of Hot Pursuit in International Law (1969) Gihl, Scand SL, 11 (1967), p 119 Butler, The Soviet Union and the Law of the Sea (1971), pp 17–103 Kehden, Die Inanspruchnahme von Meereszonen und Meeresbodenzonen durch Küstenstaaten (survey of state practice) (1971) O’Connell, BY, 45 (1971), pp 303–83 Dupuy & Piquemal, Les Appropriations nationales des espaces maritimes (Montpellier colloquium of Société, Francaise pour le droit international, 1972) Swartztrauber, The Three-Mile Limit of Territorial Seas (1972) Bouchez, Some Basic Problems of Coastal State Jurisdiction and the Future Conference on the Law of the Sea (Annales d’études internationales) (1973), pp 143–70 Lowe, the development of contiguous zones, BY, 42 (1981), pp 109–69 Marston, The Marginal Seabed: United Kingdom Legal Practice (1981) Jagota, Hag R, 171 (1981), ii, 1–224 O’Connell, The International Law of the Sea (ed Shearer, vol 1,1982; vol 2, 1984) Rao, The New Law of Maritime Zones; with Special Reference to India’s Maritime Zones (1983) Beazley, Maritime Limits and Baselines — Guide to their Delimitation (3rd ed, 1987) UN Legislative Series, Laws and Regulations on the Regime of the Territorial Sea (1957) (ST/LEG/SER B); National Legislation and Treaties relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea (1970) (ST/LEG/SER B/15); National Legislation and Treaties relating to the Law of the Sea (1974) (ST/LEG/SERB/16) (p. 600) YBILC (1950), i–ii, 2nd session; (1951), i–ii, 3rd session; 4th session; (1953), i–ii, 5th session; (1954), i–ii, 6th session; (1955), i–ii, 7th session; (1956), i–ii, 8th session; Churchill, Houston Lay and Nordquist (eds), New Directions in the Law of the Sea (vols I–XI, 1973–81), a convenient collection of documents and other materials, with commentaries Myron Nordquist (ed), UN Convention on the Law of the Sea (1982): A Commentary (vol 1, 1985).

§ 187  Concept of territorial sea

The 1982 Convention on the Law of the Sea provides:

Article 2  Legal status of the territorial sea, of the air space, above the territorial sea and of its bed and subsoil

1. 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.

2. This sovereignty extends to the airspace above the territorial sea as well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.’1

This belt of sea adjacent to the coast was formerly known either as the marginal belt or as territorial waters; but the latter term had the disadvantage that it was also used sometimes to denote internal waters, and sometimes to denote internal waters and territorial sea combined.2 It was formerly contested whether the territorial sea was subject to the sovereignty of the coastal state, but it is now generally accepted that ‘the rights of the coastal State over the territorial sea do not differ in nature from the rights of sovereignty which the State exercises over other parts of its territory’.3 It follows that the coastal state has exclusive rights to (p. 601) the natural products of the territorial sea, including fisheries; and to the resources of the seabed and its subsoil, such as hydrocarbons, gravel and minerals. Nevertheless, the sovereignty over the territorial sea is, unlike that over internal waters, subject to the enjoyment of certain rights of innocent passage and of transit by vessels of all nations.4

The possession of territorial sea entails not only rights but also obligations. As Judge McNair put it in his dissenting opinion in the Anglo-Norwegian Fisheries case:5

‘To every State whose land territory is at any place washed by the sea, international law attaches a corresponding portion of maritime territory … International law does not say to a State: “You are entitled to claim territorial waters if you want them”. No maritime State can refuse them. International law imposes upon a maritime State certain obligations and confers upon it certain rights arising out of the sovereignty which it exercises over its maritime territory. The possession of this territory is not optional, nor dependent upon the will of the State, but compulsory.’

The Judgment of the Court also spoke of the low-water mark criterion as ‘the most favourable to the coastal state and clearly shows the character of territorial waters as appurtenant to the land territory’.6

It follows from the regime of sovereignty that the coastal state has the exclusive right to appropriate the natural products of the territorial sea, including the right to fisheries therein, and to the resources of the seabed and of its subsoil, namely, sedentary fisheries and non-living resources such as hydrocarbons, gravel and minerals.

(p. 602) § 188  The normal territorial sea baseline

The normal baseline from which the breadth of the territorial sea is measured, is the low-water mark along the coast as marked on large-scale charts officially recognised by the coastal state.1 The only exceptions, generally recognised within this normal system, to the low-water mark following the sinuosities of the coast rule, are the straight closing lines of gulfs and bays, of the mouths of rivers, and of the waters of harbours.2 Thus the normal baseline is the coast, marked by the low-water mark,3 or, in parts of the coast where appropriate, marked by the straight lines limiting the internal waters of gulfs, bays, and harbours. The baseline is important, not only as limiting the extent of internal, or national waters (in respect of which there is no right of innocent passage), but also because ‘the outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea’.4

(p. 603) Although the ‘normal’ baseline is the low-water mark following the sinuosities of the coast, it is logical that it should depart from the low-water mark in order to follow the outer limit of any internal waters such as bays, gulfs, river mouths and harbours; for such internal waters are in principle, equivalent to land territory.5 Moreover, where there are certain land features in an intimate geographical relationship with the mainland, a question may arise whether they should be regarded as part of the coast. In any event, islands require special consideration. It will be convenient to consider these matters in turn before going on to the straight baseline system which may sometimes be employed instead of the normal baseline.6

§ 189  The mouths of rivers

Where a river flows into a gulf or a bay, the baseline is determined under the rules for bays: but where a river flows directly into the sea, some special rule may be needed. Article 9 of the 1982 Convention, following faithfully the wording of Article 13 of the 1958 Geneva Convention, provides:

‘If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.’

Neither convention provides any special rule for the case where the river reaches the sea through an estuary; but the French text of Article 9 of the 1982 Convention makes it clear that it is dealing only with a river flowing into the sea sans former d’estoire.1 It is arguable that estuaries should, therefore, be treated under the only other appropriate rule provided in both conventions; namely, as bays.2 (p. 604) O’Connell and Shearer, however, conclude that since there is no special estuary rule in either convention, the position is that ‘the case of river-mouths, other than those of simple stream form, remains unregulated by the Geneva Convention [as also by the Convention on the Law of the Sea], and must be assessed from the point of view of customary law, which would appear to require that all relevant factors, geographical, geophysical, historical, political, economic and sociological be evaluated in each instance’.3

§ 190  Islands and islets

Every island1 is entitled to its own territorial sea, which is delimited in the same way as the territorial sea of the mainland. But formations which do not amount to islands do not generate territorial sea. An island is for this purpose defined simply in physical terms. Importance, population, or even habitability do not enter into it (though, as will be seen later, these may be relevant to the different questions of the continental shelf and the exclusive economic zone). An island, therefore, is ‘a naturally formed area of land, surrounded by water, which is above water at high tide’.2 Islands have territorial sea of their own whether they are situated so near the mainland coast as in any event to be within territorial sea, or are situated outside the mainland territorial sea. Where an island is situated wholly or partly within territorial sea generated by the mainland, it will therefore produce in effect a bulge in the outer limit of that territorial sea. The definition of an island as ‘naturally formed’ excludes artificial islands. Nor does the construction of a lighthouse or other installation on a low-tide elevation make that low-tide elevation into an island, even though the structure itself be permanently above high water. The rule that every island is entitled to a territorial sea does not mean that every island has an entire territorial sea; this will normally only happen where the island is at least twice the breadth of the territorial sea distant from other islands, or the mainland coast, or even low-tide elevations. Moreover, agreements on international maritime boundaries may choose to ignore the effect of certain islands, such as isolated rocks, in order to achieve a convenient and equitable boundary line.

(p. 605) § 191  Reefs and atolls

The 1982 Law of the Sea Convention provides a particular territorial sea baseline rule ‘in the case of islands situated on atolls or of islands having fringing reefs’, when ‘the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognised by the coastal state’.1

§ 192  Low-tide elevations

A low-tide elevation is ‘a naturally formed area of land which is surrounded by and above water at low-tide but is submerged at high-tide’. A low-tide elevation does not generate territorial sea. But where it ‘is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea’.1 Thus, drying rocks and shoals situated within what is already territorial sea, will cause a bulge in the outer limit of the territorial sea, in the same way as islands; and it would also seem to follow from the wording of the article that the waters inside the low-tide elevation basepoint must be internal waters, for the effect is to shift the baseline. Nevertheless, drying rocks and shoals outside the basic territorial sea breadth from the coast can have no effect upon the delimitation of the territorial sea, as they generate no territorial sea of their own.2 Thus, a low-tide (p. 606) elevation that is not within the distance of the breadth of the territorial sea from the shore, but is brought within the territorial sea by the effect of another low-tide elevation that is within that distance, will not have the effect of causing a second and further bulge in the outer limit of the territorial sea. In short, there must be no ‘leap-frogging’.3

§ 193  Ports, harbours and roadsteads and the baseline

The waters of ports have always been internal waters. Accordingly, Article 11 of the 1982 Convention provides that:

‘For the purpose of 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. Off-shore installations and artificial islands shall not be considered as permanent harbour works.’1

It may not always be easy to make the distinction thus required between an offshore structure and one that is on the coast. The Commentary in the International Law Commission’s Report on their draft article dealing with this matter stated that ‘permanent structures erected on the coast and jutting out to sea (such as jetties and coast protective works) are assimilated to harbour works’, but it preferred not to venture an opinion on the position ‘where such structures are of excessive length (for instance a jetty extending several kilometres into the sea)’. An offshore port structure would seem to count as an ‘installation’ rather than harbour works, for the purpose of a normal baseline.2

(p. 607) Roadsteads are not part of internal waters. It is now considered sufficient if they always enjoy the status of territorial sea. Thus Article 12 of the 1982 Convention, provides that ‘roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea’.3

§ 194  Straight baselines

The description of the low-water mark as the ‘normal’ baseline of territorial sea implies the existence of another system: the so-called straight baseline system, which emerged as an international rule as a result of the Judgment of the International Court of Justice in the Anglo-Norwegian Fisheries case.1 In that case the Court held that the belt of territorial sea may, in certain kinds of localities, follow the general direction of the coast instead of all the sinuosities of the coast; and gave its approval to the method of using straight baselines joining the low-water marks of selected basepoints, such as rocks, headlands or even outlying islands. Accordingly, the Court held to be in conformity with international law a Norwegian decree of 1935 which delimited the Norwegian fisheries zone2 by reference to the straight baseline method, although (p. 608) these straight lines of substantial length3 encompassed large stretches of water which hitherto were generally believed to form part of the high seas.4

The Court was impressed with the seeming difficulties of tracing the limits of territorial sea on so complex a coast as the west coast of Norway, with its fjords and the outer rampart of islands (the skjaergaard), if those limits were to attempt to follow all the sinuosities of the coast.5 Accordingly it modified the normal rule by allowing that, on such a coast, a system of straight baselines might be employed, provided the straight baselines followed the ‘general direction’ of the coast; a solution it conceived to be dictated by ‘geographical realities’. The principal juridical justification, however, of the straight baselines joining basepoints of the outer fringe of islands rather than the mainland coast was that the waters so enclosed were ‘sufficiently linked with the land domain to be subject to the regime of internal waters’. In reaching this conclusion, in what is certainly one of its most influential judgments, the Court insisted that:

‘The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.’6

Nevertheless in the principle that the baselines must follow the general direction of the coast, the judgment accepted as a key element of the system a criterion which was both flexible and susceptible of a highly subjective element.7

(p. 609) This straight baseline method was adopted and codified first by the International Law Commission, then successively in Article 4 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, the text of which reappears in a slightly elaborated form in Article 7 of the 1982 Convention on the Law of the Sea. Article 7 has six paragraphs.

Paragraph 1 provides that the method of ‘straight baselines joining appropriate points’ may be employed, ‘in localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity’. This echoes, though not precisely, the passage in the judgment in the Anglo-Norwegian Fisheries case, ICJ Rep (1951), p 129: ‘Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the “skjaergaard”.’ But apart from the not insignificant difference between an ‘archipelago’ and a ‘fringe’, the word ‘may’ in paragraph 1 of Article 7, makes the Convention rule importantly different from the Court’s conclusion that in such localities, ‘the baseline becomes independent of the low-water mark and can only be determined by means of a geometric construction. In such circumstances, the low-water mark rule can no longer be put forward as a rule requiring the coast line to be followed in all its sinuosities’ (emphasis added).8

Paragraph 2 of Article 7, which has no equivalent in the 1958 Convention, provides a rule for deltas where the coast may be constantly shifting and selected basepoints may even disappear, as in the case of the Ganges delta. It therefore provides:

2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.’

Article 7 goes on in its remaining paragraph to state the conditions under which the straight baseline method may be applied: the baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the baselines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters;9 ‘straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built upon them or except in instances where the drawing of baselines to and from such elevations has received general international recognition’.10 The system may not be applied ‘in such a (p. 610) manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone’.11 As to those ‘economic interests, peculiar to the region’, which featured in the Norwegian argument in the Anglo-Norwegian Fisheries case, it is provided that, where their reality and importance are clearly evidenced by a long usage they may be taken into account in determining particular baselines;12 that is to say, they can never be of themselves a justification for the adoption of the method.

Straight baseline systems had, by 1989, been adopted for some part or often the whole of their coasts by some 60 countries.13 This, being a sizeable proportion of all coastal states, suggests some modification of the concept since the Anglo-Norwegian Fisheries case, where the Court attached importance to what it supposed to be the unusual geographical nature of the west coast of Norway. It is still clear, however, that the overriding principles must remain those laid down in the Anglo-Norwegian Fisheries case, namely, that the waters enclosed within the baselines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters, and that the baselines must not depart to any appreciable extent from the general direction of the coast; though the meaning of these criteria must themselves to some degree be in turn shaped by subsequent state practice.

Article 8 of the 1982 Convention on the Law of the Sea14 recognises that, except under the rules for archipelagoes, the waters on the landward side of the baseline of the territorial sea, are part of the internal waters of the state. But it also provides that where the establishment of a straight baseline system has the effect of enclosing as internal waters areas which previously had not been considered as such, a right of innocent passage shall exist in those waters; thus recognising the principle that where a state makes ‘a fresh delimitation of its territorial sea according to the straight baseline principle, thus including in its internal waters parts of the high seas or of the territorial sea that had previously been waters through which international traffic passed, other nations could not be deprived of the right of passage in those waters’.15

§ 195  Lighthouses outside the territorial sea

Since many important lighthouses are built outside the territorial sea of coastal states, the question has arisen (p. 611) whether a state can claim a territorial sea around its lighthouses constructed on low-tide elevations in the open sea — a question which Sir Charles Russell,1 the British Attorney-General, in the Behring Sea Seal Fisheries case answered in the affirmative. It is tempting to compare such lighthouses with islands,2 and argue in favour of a territorial sea around them; but such an identification is misleading. Lighthouses should be treated on the same lines as anchored lightships. Just as a state may not claim sovereignty over a territorial sea around an anchored lightship, so it may not make such a claim for a lighthouse outside the territorial sea.3 Where, however, a lighthouse is built upon a rock formation which is itself proud of high water and therefore is an island, as for example the Eddystone Light, the island will itself generate a territorial sea.4 On the other hand, as has been seen above, though low-tide elevations may not, according to the Geneva Convention, be used as basepoints of a straight baseline system, low-tide elevations with lighthouses or ‘similar installations’, permanently above sea level, may be used as basepoints. It is anomalous that installations for the exploration or exploitation of the resources of the continental shelf are entitled to a safety zone, but lighthouses built on drying rocks in the high seas off a coast apparently are not.5

§ 196  Breadth of the territorial sea

It has always been accepted that the territorial sea is a continuous belt of even breadth as measured from the baseline.1 The maximum permissible breadth is, however, a question much controverted in the past, and on which state practice has differed. According to Bynkershoek, terrae potestas finitur ubi finitur armorum vis;2 and at one time an important group of states subscribed to the view that this limit was one marine league, that is three nautical miles;3 that having been notionally the maximum range of (p. 612) artillery about the close of the 18th century. Accordingly, at the Hague Codification Conference of 1930 the majority of states, despite the increased range of guns, still adhered to the limit of three miles;4 though many of them made this dependent upon the recognition of a further protective contiguous zone.5 It was because of disagreement on the extent of the maritime belt and of a contiguous zone that the Codification Conference of 1930 failed to produce a convention on territorial waters, as the territorial sea was then called.

The 1958 Geneva Conference on the Law of the Sea also failed to reach agreement on the breadth of the territorial sea; as did likewise the Second United Nations Conference on the Law of the Sea called at Geneva in 1960 for the specific purpose of attempting to agree a breadth. The years following the 1958 and 1960 Geneva Conferences saw an increasing number of states claiming, and enforcing, often without protest, territorial seas of 12 miles breadth or more; and there were also some very much larger claims, notably in South America, but also in Africa, where some territorial seas of 200 miles were established.6

(p. 613) The great majority of states, however, claim territorial seas of 12 miles or less; and the 1982 United Nations Convention on the Law of the Sea provides in Article 3 that:

‘Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.’

§ 197  Territorial sea boundaries

Where the territorial seas of opposite or adjacent coasts of different states meet, the question may be the correct location of the international boundary between the territorial seas. Article 15 of the 1982 Convention on the Law of the Sea provides, under the rubric of ‘Delimitation of the territorial sea between States with opposite or adjacent coasts’, as follows:

‘Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.’1

(p. 614) ‘Special circumstances’ are not defined in the convention but might presumably include, for example, the presence of islands2 or navigable channels, or historic fishing rights. What is, however, clear beyond doubt is that the boundary is prima facie the median, or equidistant line, failing either agreement to the contrary, or the demonstration of an historic title or other special circumstances necessitating a different delimitation. There is a further consideration worthy of mention. In a strait, or other narrow waters between states whether adjacent or opposite, the adoption, by one only of the two states concerned, of a straight baseline for its territorial sea could obviously make an important difference to the location of the resultant median, or other equidistance, line. It might be for consideration, therefore, whether this could of itself sometimes constitute a special circumstance.3

§ 198  Navigation within the territorial sea

Although the territorial sea is part of the territory of the coastal state and therefore under its territorial sovereignty, the territorial sea is nevertheless open to merchantmen of all nations for innocent navigation, cabotage excepted. And it is the common conviction that every state has by customary international law the right to demand that in time of peace its merchantmen may inoffensively pass through the territorial sea of every other state. This is a corollary of the freedom of the open sea.

In consequence, no state can levy tolls for the mere passage of foreign vessels through its territorial sea. Although the littoral state may spend money on the erection and maintenance of lighthouses and other facilities for safe navigation within its territorial sea, it cannot make foreign vessels merely passing pay for such outlays;1 or, indeed, impose any requirements ‘which have the practical effect of denying or impairing the right of innocent passage’. Any attempt on the part of a coastal state to prevent or to hamper innocent passage through the territorial sea in time of peace is unlawful, nor may the coastal state ‘discriminate in form or in fact: against the ships of any State or against ships carrying cargoes (p. 615) to, from or on behalf of any State’.2 A coastal state must give appropriate publicity to any dangers to navigation, of which it has knowledge within its territorial sea.3

The coastal state may, however, take necessary steps to prevent passage that is not innocent;4 or, where a ship is proceeding to internal waters or a ‘port facility’ outside internal waters, ‘the coastal State’ may take steps to prevent any breach of conditions to which such an admission is subject.5 Furthermore, the coastal state may, ‘without discrimination in form or fact among foreign ships’, actually suspend innocent passage ‘in specified areas of its territorial sea’, if such suspension ‘is essential for the protection of its security, including weapons exercises’. Such a suspension ‘shall take effect only after having been duly published’.6

§ 199  Definition of innocent passage

Innocent passage is defined as navigation through the territorial sea for the purpose of traversing that sea without entering internal waters, including calling at a roadstead or port facility outside internal waters; or of proceeding to or from internal waters or a call at such roadstead facility. Passage, though it must be ‘continuous and expeditious’, includes stopping and anchoring so far as they are incidental to ordinary navigation or are rendered necessary by force majeure or by distress, or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.1 Deciding what is innocent and what is non-innocent passage is not without its difficulties; for there may be conflict between the interests of international navigation and the interests of the coastal state and its municipal law. Yet it is important that an international right should not be qualified or abridged by municipal law. Some anxiety has been expressed, therefore, about the formula used in the Geneva Convention2 that ‘passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State’; even though this must be read in the light of the coastal state’s duty not to hamper innocent passage through the territorial sea.3

In the Convention on the Law of the Sea 1982, an effort is made to deal with the problem of definition by setting out seriatim4 those instances where the passage of a foreign ship shall be considered ‘prejudicial to the peace, good order and security of the coastal State’; viz

(p. 616) ‘if in the territorial sea it engages in any of the following activities:

  1. (a)  any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

  2. (b)  any exercise or practice with weapons of any kind;

  3. (c)  any act aimed at collecting information to the prejudice of the defence and security of the coastal State;[5]

  4. (d)  any act of propaganda aimed at affecting the defence or security of the coastal State;

  5. (e)  the launching, landing or taking on board of any aircraft;

  6. (f)  the launching, landing or taking on board of any military device;

  7. (g)  the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

  8. (h)  any act of wilful and serious pollution, contrary to the present Convention;

  9. (i)  any fishing activities;

  10. (j)  the carrying out of research or survey activities;

  11. (k)  any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

  12. (l)  any other activity not having a direct bearing on passage.’

There is no doubt that (a)–(k) provide a useful and possibly comprehensive list of kinds of passage that are non-innocent. With regard to (l), which is presumably added out of abundant caution, it should be emphasised that a non-innocent passage is not necessarily an unlawful passage; it may be or it may not, but, if it is non-innocent, then even if lawful, it is not exercised as a right, unless by treaty.6

Foreign fishing vessels may not fish within the territorial sea, unless by licence; and according to the Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, the ‘passage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent those vessels from fishing in the territorial sea’.7 Such regulations usually specify that fishing gear must be stowed. It should be emphasised, nevertheless, that fishing vessels do, as much as other vessels, enjoy the right of innocent passage.

(p. 617) § 200  Coastal state laws and regulations and innocent passage

The coastal state must have the right to enact laws and regulations, especially in regard to transport and navigation, and foreign ships exercising the right of innocent passage should comply with such laws and regulations. On the other hand, such laws and regulations must themselves be in conformity with the rules of international law, and, must not in effect deny or impair the right of innocent passage, or be in form or in fact discriminatory.1 This means also that laws and regulations concerned with such matters as the safety of navigation, preservation of the environment, the control of pollution and so on, should not apply to the design, construction, manning or equipment, nor, it would seem, the operation, of foreign ships exercising the right of innocent passage, unless those municipal laws and regulations conform to generally accepted international standards in these matters.2 The rationale of this provision is, of course, not only the general desirability of regulating such matters internationally but the impossibility of requiring compliance with different municipal requirements as a vessel passes through different jurisdictions. The Convention on the Law of the Sea 1982, as with innocent passage, seeks to clarify the law by enacting an agreed list of the matters upon which the coastal state is competent to enact regulations.3

The regulatory right of the coastal state extends also to the establishment, where necessary, of traffic separation schemes, and of sea lanes, and to requiring vessels exercising the right of innocent passage to observe them. But again, such schemes should take into account, ‘(a) the recommendations of competent (p. 618) international organizations; (b) any channels customarily used for international navigation; (c) the special characteristics of particular ships and channels; and (d) the density of traffic’; and must, of course, be clearly indicated on charts and given due publicity.4

Foreign ships exercising the right of innocent passage must comply with the laws and regulations enacted by the coastal state in accordance with the requirements of international law and in particular laws and regulations relating to navigation.5

§ 201  Warships and innocent passage

Whether there is a right for the warships of foreign states to exercise a right of innocent passage through territorial seas has been a matter of dispute. The International Law Commission proposed that a state might make innocent passage of warships subject to prior authorisation, or notification; but that the state should ‘normally’ grant innocent passage.1 Neither this nor any other proposal secured a majority at the plenary session of the 1958 Geneva Conference. Consequently, the resulting convention has no provision which deals expressly with the matter. It is possible to read the text of the 1958 Geneva Convention as by implication allowing warships a right of innocent passage through the territorial sea; or as not settling the question one way or the (p. 619) other.2 As O’Connell and Shearer, The International Law of the Sea (vol 1, 1982), p 289, put it:

‘The bizarre result … was that the Geneva Convention contains no text on the subject of the passage of warships through the territorial sea, but nevertheless contains a remnant of the International Law Commission’s text in Article 23, which states that if a warship does not comply with the regulations of the coastal State, the latter may require it to leave the territorial sea.’

In any event, warships enjoy immunity from any jurisdiction other than that of their own flag state.

There are three possible views,3 therefore, of the Geneva text: (1) that the expression ‘all ships’ in Article 14 should, in the absence of a contrary intention, include warships, in which case they would enjoy the right of innocent passage like all other vessels; (2) that ‘all ships’ in Article 14, or the contrary, means only merchant ships, because an intention to confer rights of innocent passage clearly to warships would require express provision; (3) that the Convention decides nothing in the matter, and that therefore, it remains a question of customary law. The last seems the reasonable answer; though unfortunately, the customary law on the matter is itself both unclear and controverted.

The Convention on the Law of the Sea 1982 also leaves the matter of warships ambiguous. Section 3 of Part II sets out the general rules of innocent passage, and is headed ‘Innocent Passage in the Territorial Sea’. Subsection A sets out ‘Rules Applicable to all Ships’; subsection B is ‘Rules Applicable to Merchant Ships and Government Ships Operated for Commercial Purposes’; subsection C is headed ‘Rules Applicable to Warships and Other Government Ships Operated for Non-Commercial Purposes’. Of this latter subsection, Article 29 defines warships, and Article 30 is the word for word equivalent of the provision of the Geneva Convention about ‘non-compliance by warships with the laws and regulations of the coastal State’.4 There is however a new provision (Art 31) laying down flag state responsibility for loss or damage to the coastal state resulting from such non-compliance with laws and regulations of the coastal state or the provisions of the Convention or other rules of international law. This applies both to warships and to other government vessels operated for non-commercial purposes. Also Article 19.2(b) of the Convention makes it clear that ‘any exercise or practice with weapons of any kind’ is incompatible with innocent passage and must apply certainly to warships in passage through territorial sea; but this must also be the position in customary law. But again the question whether these vessels have a right to the innocent passage of territorial seas is not broached, and one is left with much the same doubtful inferences from headings, as in the 1958 Convention.5

(p. 620) Nevertheless, the important Joint Statement of the United States and the Union of Soviet Socialist Republics, of 23 September 1989,6 states in paragraph 2: ‘All ships, including warships, regardless of cargo, armament or means of propulsion, enjoy the right of innocent passage through the territorial sea in accordance with international law, for which neither prior notification nor authorization is required.’

There are in the territorial sea, particular rules for foreign submarines and other underwater vehicles; these are required to navigate on the surface and to show their flag.7 Further, if a warship of any kind does pass through the territorial sea of a state, whether or not the passage might be considered innocent, its immunity from local jurisdiction is not affected; which is why the proper remedy for misdemeanour is simply a request to leave the territorial sea, or indeed internal water, as the case might be. A warship is defined as one belonging to the armed forces of a state, bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.8

§ 202  Jurisdiction within the territorial sea

That the coastal state has exclusive jurisdiction within the territorial sea over matters of police and control is universally recognised.1 Thus it may exclude foreign pilots, may make custom-house arrangements, sanitary regulations, laws concerning stranded vessels and goods, and the like. But again the exercise of the coastal state’s jurisdiction has to be reconcilable with the rights of navigation and unhampered innocent passage, and there was formerly no uniformity of practice on this question.2 It can now be (p. 621) asserted with some confidence that the basic principles are those first codified in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and now restated in almost identical terms in the 1982 Convention. The question when the coastal state may properly exercise jurisdiction over foreign merchantmen passing through its territorial sea arises, (a) in relation to criminal law jurisdiction and (b) in relation to the exercise of jurisdiction in civil cases. In relation to criminal jurisdiction the coastal state should not exercise its jurisdiction ‘on board a foreign ship passing through its territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage’, save only in four cases:

  1. (a)  if the consequences of the crime extend to the coastal State;

  2. (b)  if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;

  3. (c)  if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state; or

  4. (d)  if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.’3

In the cases (a)–(d) the coastal state must, if the captain so requests, advise the consular authority of the flag state and assist that authority’s contact with the ship’s crew.

These limitations do not affect the right of the coastal state to make an arrest or conduct an investigation, in accordance with its own law, on board a foreign ship in passing through the territorial sea after leaving the coastal state’s own internal waters. Nevertheless, the coastal state should always have due regard to the interests of navigation; and may not take any steps on board a foreign ship in passage through the territorial sea to arrest any person or conduct any investigation in connection with any crime alleged to have been committed before the ship entered the territorial sea, if the ship, coming from a foreign port, is only passing through the territorial sea without entering internal waters.4

As regards civil jurisdiction, the coastal state should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil (p. 622) jurisdiction in relation to a person on board the ship; nor levy execution against or arrest the ship for the purpose of civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal state; except where the ship is in or passing through the territorial sea after leaving that state’s internal waters.5

§ 203  Jurisdiction in ports and harbours

Private1 foreign vessels present in ports or any other internal waters are in principle subject to the local law and the jurisdiction of the local courts both in criminal and civil matters. Since, however, vessels all have a nationality, there is also a concurrent jurisdiction by the flag state, which, at any rate in all matters concerning the internal discipline of the vessel, will normally be the convenient one to apply. The question which criminal jurisdiction should have priority may be affected by consular conventions.2 But certain general principles concerning the exercise of criminal jurisdiction are to be found in the so-called French system of port jurisdiction. In a well-known avis of 1806, in the cases of two United States vessels, The Sally and The Newton, the Conseil d’Etat3 advised that the local police jurisdiction should not be exercised in matters of internal discipline, or offences by members of the crew not affecting strangers to the vessel, unless the dimensions of the offence were such as to affect the peace and tranquillity of the port, or unless the local authority were called in by the master of the vessel. This regime, which is followed by a number of countries,4 was much refined in later cases, notably The Tempest,5 where it was held that homicide of one crew member by another may per se be deemed to affect the peace and tranquillity of the port. The result of this later case law is in effect to give priority to the local, port, jurisdiction. Thus the effect is very much the same as the practice of common law countries, which (p. 623) begins from the proposition that, ‘a merchant ship of one country, voluntarily entering the territorial limits of another, subjects herself to the jurisdiction of the latter’;6 but from this different starting point reaches much the same result in practice, as appears very clearly from the British statement to the preparatory committee for the 1930 Hague Codification Conference.7

‘In the opinion of His Majesty’s Government in Great Britain, the State is entitled to exercise jurisdiction over a foreign merchant vessel lying in its ports and over persons and goods on board.

In criminal matters it is not usual for the authorities to intervene and enforce the local jurisdiction, unless their assistance is invoked by or on behalf of the local representative of the flag State, or those in control of the ship, or a person directly likely to be affected. In every case it is for the authorities of the State to judge whether or not to intervene.

In civil matters, the State is entitled to exercise jurisdiction on a merchant vessel lying in its ports or on property on board, whenever the jurisdiction is invoked by private litigants, but where the suit is initiated against the vessel or property, the vessel or property on board should always be released on giving bail or security.

The authorities of the State are entitled to make an arrest upon a foreign merchant vessel lying in its ports.’8

The issue whether the local jurisdiction may properly be exercised in matters internal to the vessel was raised before the New York Court of Appeals in Incres Steamship Co Ltd v International Maritime Workers Union et al,9 which held that the relations between a foreign crew and the foreign owner of a vessel flying a foreign flag is, or might be, subject to the jurisdiction of the United States National Labour Relations Board and the provisions of the Labour Management Relations Act, if the foreign vessel happened to call at a United States port with any degree of regularity. The United Kingdom Government had sought and was given permission to intervene as amicus curiae on appeal to the Supreme Court. (p. 624) The United Kingdom argued that the holding ‘opposes the traditional internal economy doctrine long applied by all nations to foreign flag vessels temporarily in their ports’; moreover, ‘It gives an unwarranted extraterritorial effect to domestic law …’; it was further argued that, ‘there must be some law on shipboard and that law cannot change as the vessel moves through the waters of numerous States’.10 The Supreme Court held that the National Labour Relations Act had no application to vessels flying a foreign flag and employing foreign crew. In McCulloch v Sociedad Nacional,11 the Supreme Court referred to the ‘well-established rule of international law that the law of the flag State ordinarily governs the internal affairs of a ship’.

§ 204  Vessels in distress

By ancient custom a foreign vessel which has to take refuge in a port owing to stress of weather or other danger to its safety, enjoys a certain immunity from the local jurisdiction.1

A Convention and Statute respecting the International Regime of Maritime Ports, signed at Geneva on 9 December 1923, provides that on a basis of reciprocity the sea-going vessels of the contracting parties shall enjoy equality of treatment in, and freedom of access to, their maritime ports — that is, ‘all ports which are normally frequented by sea-going vessels and used for foreign trade’. The Statute applies to ‘all vessels, whether publicly or privately owned or controlled’, other than ‘warships or vessels performing police or administrative functions’ (Article 13) or fishing vessels (Article 14); but it does not apply to the ‘Maritime coasting trade’ — that is, cabotage2 (Article 9) — nor does it prescribe the rights and duties of belligerents and neutrals in time of war (Article 18).

The Convention on Facilitation of International Maritime Traffic 1965,3 (p. 625) provides for most-favoured nation treatment in maritime transport facilities, which shall ‘not be less favourable than measures applied in respect of other means of international transport’, and sets up ‘standards’ for adoption by parties, and provides for a cooperation to reduce formalities and documentation.4

§ 205  The contiguous zone

Not to be confused with the territorial sea is the zone of the open sea over which a coastal state may extend the operation of certain of its laws. The United Kingdom and the United States, as well as numerous other states, long had revenue and sanitary laws which imposed certain duties not only on their own vessels but also on foreign vessels bound for one of their ports and approaching, but not yet within, their territorial maritime belt.1 A formal belt of contiguous zone jurisdiction for certain limited purposes was recognised in Part II, consisting of one article, of the Geneva Convention on the Territorial Sea and the Contiguous Zone 1958. This zone was then defined as a ‘zone of the high seas contiguous to its territorial sea’, in which the coastal state had the right to exercise the control necessary to:

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

(b)  punish infringement of the above regulations committed within its territory or territorial sea.’2

It will be noted that the jurisdiction exercisable in the contiguous zone is thus confined, not only to the four stated kinds of laws and regulations, but also with a view to their application and enforcement within the territory or the territorial sea. It is of course assumed that the laws and regulations cannot in any event apply in the waters of the contiguous zone.

(p. 626) In the Geneva Convention, the contiguous zone is limited to 12 miles from the territorial sea baseline;3 the 1982 Convention on the Law of the Sea, in its Article 33, extends this to 24 miles; as is consonant with the adoption in that convention of a 12-mile rule for the territorial sea. Moreover, owing to the adoption of the exclusive economic zone, the contiguous zone is, in the later convention, no longer described as being a part of the high seas.4

Since Article 33 is permissive, and, since indeed the contiguous zone is entirely in the area of the exclusive economic zone where such a zone is claimed, it is perhaps doubtful whether a state need formally claim or proclaim a contiguous zone as a precondition of the exercise of contiguous zone jurisdiction.5

There have of course been other situations where a coastal state has claimed to be able lawfully to supplement its jurisdiction within the territorial sea by acts of enforcement done, or rather commenced, outside the territorial sea. The common law doctrine of constructive presence made it possible for courts to exercise, within limits very like those applying to the contiguous zone, jurisdiction outside the territorial sea.6

Footnotes:

The English text is used here but the Arabic, Chinese, French, Russian and Spanish are also authentic. This provision substantially echoes Art 2 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. It seems that Greece claims, however, ten miles of airspace, though only six of territorial waters, and also claims ten miles of airspace round its Aegean islands.

For a comprehensive list of territorial sea and fisheries jurisdiction claims, issued by the Hydrographic Dept of the British Navy, see BY, 59 (1988), p 519.

The Hague Codification Conference of 1920 had also preferred the term ‘territorial sea’, YBILC (1956), ii, p 265. Since its adoption by the 1959 Geneva Conference that term has been employed generally.

Ibid. But cf Fitzmaurice, ICLQ, 8 (1959), 75, n 1, who sounds a cautionary note. For former arguments against sovereignty, see Lapradelle, RG, 5 (1858), pp 273–84 and 309–30. See also the 8th ed of this vol, § 185; and the Thireaut case, decided on 24 May 1935, by the French Conseil d’Etat to the effect that territorial waters do not form part of state territory: RI (Paris), 17 (1936), pp 303–10; AD, 8 (1935–37), No 59. And see, to the same effect, the decision of the Civil Tribunal of Brest of 27 April 1939: Compagnie Francaise des Câbles Télégraphiques v Administration Francaise des Douanes, AD, 9 (1938–40), No 48.

The territorial character of the territorial sea was also stated in Art 1.1 of the 1958 Geneva Convention on the Territorial Sea: ‘The sovereignty of the State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea’. For the UK, see the Territorial Waters Order in Council 1964 (and the amended Schedule of 1979, following new surveys of the Outer Hebrides); also Earl of Lonsdale v A-G [1982] 3 All ER 579, and ILR, 77, p 293; but see also ASBL Koninklijk Yachting Verbond v Province of West Flanders (1976) ILR, 77, p 402 for the difference between regime of territorial sea and internal waters.

For an important survey of the history of the juridical status of the territorial sea, see O’Connell, BY, 45 (1971), pp 303–83; and O’Connell, The International Law of the Sea (ed Shearer, vol 1, 1982), ch 3; and for the evolution of the concept of sovereignty over the bed and subsoil of the territorial sea, see Marston, BY, 48 (1976–77), pp 321–32.

See the Case concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Rep (1986), p 3, for decision of the ICJ that the laying of mines by the US in Nicaraguan ports and territorial sea, and failing to make known their existence and location, was a breach of the obligations of the US in customary law.

For rights of passage and of transit, see §§ 198 and 211.

ICJ Rep (1951), at p 160. See also Judge Alvarez at p 150; also the Grisbardana Case (1909), RIAA, 2, p 147, which referred to ‘the fundamental principle of the law of nations, ancient and modern, according to which maritime territories are necessary appurtenances to land territory’. Bynkershoek was of the opinion, however, (De Dominio Maris c 5), that a littoral state could alienate its maritime belt without the coast itself; but that was long before the juridical nature of the belt had developed. The question was discussed in connection with the Belgo-Dutch negotiations over the Scheldt Treaty and the Passage of Wielingen; Bogaert, ‘De evolutie van de verdragsregelingen betreffende de Schelde’, Studia diplomatica, 31 (1978), pp 575–96; Erkens, ‘Le statut international de l’Escaut’, Rev Belge (1967), pp 353–78. On the matter generally, see Verzijl, International Law in Historical Perspective (vol 3, 1970), pp 54–6; and Raestad, La Mer territoriale (1913), p 162. See O’Connell, The International Law of the Sea (ed Shearer, vol 2, 1982), ch 17 for discussion of this question in relation to Gibraltar, and the New Territories of Hong Kong. For the theory that by the Ireland Act 1920, the Province of Northern Ireland was left without territorial sea, see Symmons, Northern Ireland Legal Quarterly (1976), p 48; O’Higgins, ICLQ, 9 (1960), p 333; Dail Deb Vol 176, col 1563. See also Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co (1978) (2) SA 391 and ILR, 69, p 88.

ICJ Rep (1951), p 128.

See Art 5 of the 1982 Convention; also Art 3 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. In both instruments the low-water line is called ‘the normal baseline’, cf Li Chia Hsing v Rankin [1979] 23 Aust LR 151; and (1838–39) ILR, 73, p 173 for the view that the position of the baseline is a question of fact for the court and not dependent on being marked upon large-scale charts.

The overwhelming body of practice has used the low-water mark for some time (according to O’Connell, The International Law of the Sea (ed Shearer, vol 2, 1982), p 172, it first appeared in the Fishery Convention of 1839 between Great Britain and France, BFSP, 27 (1838–39), p 983), as is shown by the evidence before the 1930 Hague Codification Committee. See Bases of Discussion, ii, pp 35–9, and Boggs, AJ, 24 (1930), pp 541–48. See also the Dissenting Opinion of Judge McNair in the Anglo-Norwegian Fisheries Case, ICJ Rep (1951), p 162 for an analysis of the replies of governments. The relevant sub-committee of the Hague Conference of 1930 formulated the low-water mark rule as ‘following all the sinuosities of the coast’ — though it admitted exceptions in the case of bays, islands in the vicinity of coasts, and groups of islands. In the Anglo-Norwegian Fisheries case the Court ‘had no difficulty in finding that, for the purpose of measuring the breadth of the territorial sea, it is the low-water mark, as opposed to the high-water mark, or the mean between the two tides, which has generally been adopted in the practice of States’: ICJ Rep (1951), p 128. For a discussion of the meaning of ‘coast’ as used in the 1825 Convention between Great Britain and Russia, see the Alaska Boundary Case (1903), RIAA, 15, pp 485ff. See also US v California, ILR, 57 (1952), p 54, a classic statement of the interpretation of the normal baseline of territorial sea.

See Alexander, Vir JIL, 23 (1983), p 506–36; Beazley, International Hydrographic Review (1982), pp 149–59; also Special Publication No 2 of Hydrographic Society (3rd rev ed, 1989) and Maritime Limits and Boundaries — A Guide to their Delineation (3rd ed, 1987); Caflish, RG, 84 (1980), pp 68–119; also in Le Nouveau Droit international de la mer (eds Bardonnet and Virally, 1983), pp 35–116; also Annuario de derecho international publico, 1 (1981), pp 85–103.

See § 206 for gulfs and bays. For ports and harbours, see § 193. For a decision that harbour works do not include dredged channels, see US v Louisiana (1969), ILR, 53, p 206, at p 227.

What is the low-water mark is itself a technical question to which probably no generally accepted answer is possible despite the efforts of hydrographic conferences; for there is no general agreement on a tidal datum. To some extent the problem is mitigated by the official large-scale charts rule of the conventions. For a thorough discussion of the problem, see O’Connell, op cit, vol 2, pp 173–99. In relation to the question of what is a low-tide elevation, Lord Diplock in Post Office v Estuary Radio Ltd [1968] 2 QB 740, at p 761, said: ‘interesting and difficult questions arise as to whether a low-tide elevation must be above water at all low-tides, at mean low-water spring tides, at Admiralty datum, at the lowest tides experienced from time to time (and if so, how often?) in the course of a year, or at lowest astronomical tides. Some day some court, municipal or international, may have to decide this’. (See also in R v Kent Justices [1967] 2 QB 153 (CA); 43 ILR, p 80.

On the possible effects of sea-level rise, see Soons, Neth IL Rev, 37 (1990), pp 207–32.

Article 4 of the 1982 Convention; Art 6 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. The boundary between internal waters and territorial sea is often important for municipal law reasons. See Re Dominion Coal Co Ltd (1963) 4 DLR (2d) 593 (and see Bowett’s note on the case, BY, 40 (1964), pp 375–7).

For Icelandic law of territorial sea, see ILM, 18 (1979), p 1504. For extension of Netherlands territorial sea, see de Jong, Neth IL Rev, 33 (1983), pp 129–45.

See decision of the British Columbia Court of Appeal, in Re Ownership of the Bed of the Strait of Georgia and Related Areas (1977), BCLR, 1, p 97; ILR, 73, p 186. The Court advised by a majority that the strait around Vancouver Island (Strait of Juan de Fuca, of Georgia, Johnstone Strait and Queen Charlotte Strait) are internal waters. Accordingly the submerged lands belonged to Britsh Colombia and not to Canada. See also New South Wales v Australia (1976), ALR, 8, p 1; ILR, 51, p 89.

See § 194. For the question of the definition of bays and their closing lines, see § 206.

On the special problem of Canada’s Arctic waters, see RG, 90 (1986), pp 187–92; and Scovazzi, AFDI, 33 (1987), pp 663–80. See § 207, n 1 and § 256, n 2.

On Soviet baselines, see Butler, ICLQ, 20 (1971), pp 750–52; for Australia, O’Connell, International Law in Australia (1965), pp 246–91; for Nigeria, see Nwogugu, ICLQ, 22 (1973), pp 349–62. For waters off Northern Ireland, see DPP v McNeill (1975) 59 ILR 345, and Bowett’s note BY, 48 (1976–77), pp 335–79 also Towey, ICLQ, 32 (1983), pp 1013–25; and Symmons, ibid, 33 (1984), pp 1064–8.

Estuaries are in many important ways different from bays; see O’Connell, The International Law of the Sea (ed Shearer, vol 2, 1982), pp 221ff, where material will also be found on particular important estuaries such as that of the River Plate. See §§ 207, n 2.

The ILC draft of what became Art 13 of the Geneva Convention on the Territorial Sea and the Contiguous Zone, had expressly excepted estuaries from the rule, the intention being that these be treated as bays.

As the 1956 Report of the ILC had intended; see YBILC (1956), ii.

O’Connell, op cit, pp 221–5. See also the Umpire’s report on the problems that arose in the interpretations of terms such as river-mouth and creek in the Fisheries Convention of 1818 between Great Britain and the US; see Moore, International Arbitrations, i, p 426ff.

Article 121.1 of the 1982 Convention on the Law of the Sea. On islands generally see Bowett, The Legal Regime of Islands in International Law (1979); Papadakis, The International Regime of Artificial Islands (1977); Dipla, Le Régime juridique de îles dans le droit international de la mer (1984); Ely, International Lawyer (1972), pp 219–36; Goldie, NYIL (1973), pp 237–61; Hodgson, ‘Islands: Normal and Special Circumstances’, Report of the 8th Annual Conference, Law of the Sea Instiute (1973), pp 137–99; Jayaraman, Legal Regime of Islands (1982); Karl, AJ, 71 (1977), pp 642–73; Symmons, The Maritime Zones of Islands in International Law (1979); Jayewardene, The Regime of Islands in International Law (1990). The only matter dealt with here is the position of islands in relation to the measurement of the territorial sea. Different questions arise concerning the influence that islands may have on international sea boundaries; see §§ 190, 323. On newborn islands, see Rahman, ICLQ, 30 (1981), pp 368–75.

Article 121 of the 1982 Convention on the Law of the Sea; also Art 10 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. It is nowhere said what is meant by ‘high tide’. It would be reasonable to take it to be the mean high water spring tide. But it is arguable that it should mean the highest astronomical tide, ie the highest tide which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions. On the other hand it may be presumed not to mean the highest possible tide allowing for the effect of storm surges or other unpredictable phenomena.

Article 121 of the 1982 Convention goes on to provide:

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’

On these matters see Law of the Sea Institute, University of Rhode Island, Occasional Paper No 13, April 1972, Towards an Objective Analysis of Special Circumstances, by Hodgson and Alexander; also Islands: Normal and Special Circumstances, by Hodgson, US Dept of State Research Study RGES-3 of 10 December 1973; and Jayewardene, The Regime of Islands in International Law (1990), ch 4; also Kwiatowska and Soons in Neth YBIL, 21 (1990), pp 139–81; and see Art 6 of the 1982 Convention.

Article 13 of the 1982 Law of the Sea Convention, repeating Art 11.1 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone.

In the British Territorial Waters Order in Council 1964, a low-tide elevation is defined more precisely: ‘A naturally formed area of drying land surrounded by water which is below water at mean high water spring tides’; see also discussion in the court below in the Estuary Radio case (see § 188, n 3).

For low-tide elevations and straight baselines, see Marston, BY, 46 (1972–73), pp 405–24.

See para 2 of Art 13 of the 1982 Convention:

2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.’

Compare, however, Art 7.4 of the Convention which provides, in regard to the straight baseline system to be described below, that straight baselines ‘shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them, or except in instances where the drawing of baselines to and from such elevations has received general international recognition’. (For a rationale, see Fitzmaurice, § 187, n 3, at p 86.) See also YBILC (1956), ii, p 270–71 for comment on the effect of low-tide elevations.

It is not entirely clear whether low-tide elevations within a distance, not exceeding the breadth of the territorial sea, from a straight closing line of a bay, may be counted as basepoints for the measurement of the territorial sea. Bowett, The Legal Regime of Islands in International Law (1979), p 13, says such low-tide elevations may not be counted. For a carefully considered different view, see US v Louisiana (1969), ILR, 53, p 206, at pp 232–38. As the doubt was expressed in argument in that case, it depends upon whether, in Art 11.1 of the Geneva Convention (now Art 13.1 of the 1982 Convention), the territorial sea is there referred to as a situs or as a measurement of distance; and does ‘mainland’ for this purpose include internal waters? The Court concluded: ‘that low-tide elevations situated in the territorial sea as measured from bay-closing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends’ ((1969), ILR, 53, at p 238).

See YBILC (1956), i, p 283; the Commission’s final draft was however changed at the Geneva Conference. The Commission’s draft had said: ‘Drying rocks and shoals which are wholly or partly within the territorial sea, as measured from the mainland or an island, may be taken as points of departure for measuring the extension of the territorial sea’, ibid, ii, p 270.

Article 8 of the 1958 Geneva Convention expresses the same rule rather differently: ‘For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast’. See Texas v Louisiana (1976) for the use of jetties built in the 1880s, by a Special Master appointed by the US Supreme Court, in the drawing of a lateral territorial sea boundary between Texas and Louisiana: (1976) ILR, 59, p 194 and map at end of volume. See O’Connell, The International Law of the Sea (ed Shearer, vol 1, 1982), p 221, and also for the holding by another Special Master that jetties are part of the coastline of Florida. For meaning of port or harbour, see Dominion Coal Co v Country of Cape Breton (1963), Canada, Supreme Court of Nova Scotia, ILR, 42, p 62.

See the US Deep Water Port Act 1974 (ILM, 14 (1975), p 153); s 9(d)(1) provides for the establishment of a safety zone ‘subject to the recognized principles of international law’; the Act contemplates that the structure would be connected to the coast by pipeline; it is not, however, a permanent structure because the Act itself contemplates its possible removal (s 4(e)(3)). For the legal issues raised by deep-water port structures, see Gary-Knight, Journal of Maritime Law and Commerce, 4 (1972–73), p 389.

In US v Louisiana et al (1969), ILR, 53, p 206, at p 228, the Supreme Court held that dredged channels were not ‘harbour works’ for the purposes of Art 8 of the 1958 Geneva Convention Territorial Sea and Contiguous Zone; which provision, it was said, applied rather to ‘raised structures’, forming a part of the land which in some sense encloses and shelters the waters within. Accordingly dredged channels were not established by Art 8 as inland waters.

Again there is a drafting different from the 1958 Geneva Convention, Art 9 of which describes them in the like terms, but then adds the sentence: ‘The coastal State must clearly demarcate such roadsteads and indicate them on charts together with their boundaries, to which due publicity must be given.’

Gidel, it should be said, was of the opinion that roadsteads could be made into internal waters; see Le Droit international public de la mer (vol ii, 1932), pp 22–5.

See ICJ Rep (1951), p 3. For analysis of the Judgment, see Waldock, BY, 28 (1951), pp 114–71. See also Johnson, ICLO, 1 (1952), pp 145–80; Wilberforce, 38 Grotius Society (1952), pp 151–68; Evensen, AJ, 46 (1952), pp 609–30; Bourquin, Acta Scandinavica, 22 (1952), pp 102–32; Smith, YB of World Affairs (1953), pp 283–307; Auby, Clunet, 80 (1953), pp 25–55; Jully, Friedenswarte, 52 (1953), pp 48–66. See also Boggs, AJ, 45 (1951), pp 240–66, as to baselines in relation to the various problems of the delimitation of territorial waters. For much earlier practice employing straight baselines, see O’Connell, op cit, p 199. See R v Cooper and R v Martin decided by the Supreme Court of Norway about the strengthening of penalties for illegal fishing after the ICJ had recognised the Norwegian limits, ILR (1953), pp 166, 167. See also Raptis v South Australia (1977), ALR, 15, p 223; ILR, 69, p 32. For low-tide elevations and straight baselines, see Marston, The Marginal Seabed: United Kingdom Legal Practice (1981), p 13 n 1.

For the straight baseline system in Canadian Arctic waters, see Scovazzi, AFDI, 33 (1987), pp 663–80.

For another use of straight baselines, see § 216.

Although the Norwegian Decree in question was in terms of a fisheries zone, the parties with the concurrence of the Court appear to have agreed to treat it as decisive of the extent of Norwegian national, or internal, waters, which the Court, somewhat confusingly, referred to as ‘none other than the sea which Norway considers to be her territorial sea’ (see ICJ Rep (1951), p 125). McNair more carefully described the issue as whether ‘certain areas of water off the coast of Norway are high seas or Norwegian waters, either territorial or internal’ (ICJ Rep (1951), p 158).

The Court attached some importance to historic title and to acquiescence (and see Judge Hackworth’s separate concurring opinion, at p 206); but the Court also made it clear that the method employed in the 1935 Decree was in accord with general rules of international law, independently of these other considerations.

They included lines 19, 25, 39 and even 44 miles long.

As stated by Judge Hsu Mo (at p 156), in one area, that of Lopphavet, the lines — 44 miles long — affected an area of several hundred square miles.

The Court seemingly laboured under the impression that the correct way of finding the outer limit of territorial sea was to attempt to construct a tracé parallèle; rather than the mariners’ way of scribing arcs from headlands. The arcs of circles method the Judgment admits to be ‘constantly used’, but dismissed it curiously as ‘a new technique’ and ‘not obligatory by law’ (ICJ Rep (1951), p 129). It was presumably the manifest impracticalities of applying a tracé of the Norwegian coast which seemed to dictate a simpler baseline. But see Waldock, BY, 28 (1951), pp 114–71 and O’Connell, op cit, pp 230–35.

ICJ Rep (1951), p 132.

See ibid, p 141. See also the separate opinion of Judge Hsu Mo, that this expression ‘being one of Norway’s own adoption and constituting one of the elements of a system established by herself, should not be given a too liberal interpretation, so liberal that the coast line is almost completely ignored’ (pp 154–5). But see also O’Connell and Shearer’s interesting comment (op cit, p 209) that: ‘A fringe of islands is, apparently, sufficient even where there are no deep indentations, and vice versa. But how many islands make a “fringe” and what must be their relationship one to another and to the mainland? This can only be answered by looking at the formulation of the “general direction of the coast” concept of Article 4(2) [or Article 7(3) of the 1982 Covention], which is thus a criterion of when the method may be used, and not a mere condition. Although Article 4 [or Article 7] looks as if it is an exception to the normal rule…, in fact the normal rule is that of the general direction of the coast, and that rule is exceptionally applied in the circumstances mentioned in Article 4, where the coast is exceptional’.

On the effect of ‘fringes of islands’ and straight baselines, especially in relation to bays, see US v Louisiana (1969) 394 US 11 and ILR, 53, p 206, at p 257. Also US v Louisiana (1974), ILR, 59, p 249, where the provisions of the Geneva Convention are again considered.

The sequence of ‘deeply indented and cut into’ in para 1 of Art 7 is arguably pleonastic; even though the ILC draft Art 5 (YBILC (1956), ii, p 266) had ‘deeply indented or cut into’.

Article 7, para 3 of the 1982 Convention and the like Art 4, para 2 of the 1958 Convention. For the general direction of the coast rule, see Waldock, BY, 28 (1951), pp 147ff.

10  Article 4, para 2 of the 1958 Convention does not have the second exception referring to ‘general international recognition’. The new exception was introduced in the 1982 Convention to ensure conformity with the 1951 Judgment’s recognition that Norway might use certain’ bare low-tide elevations on this ground. For a detailed analysis of low-tide elevations in the argument of the Anglo-Norwegian Fisheries case, see Marston, ‘Low-Tide Elevations and Straight Baselines’, BY, 46 (1972–73), p 405.

11  Article 7, para 6 of the 1982 Convention; Art 4, para 5 of the 1958 Convention. Article 4, para 6 adds a requirement that: ‘The coastal State must clearly indicate straight baselines on charts to which due publicity must be given.’ This is to be found in the 1982 Convention in the more elaborate Art 16 about charts and lists of geographical coordinates.

12  Article 7, para 5 of the 1982 Convention; Art 4, para 4 of the 1958 Convention. See also YBILC (1956), i, p 187, and ii, p 25.

13  Some countries have adopted the method for coasts in several different countries, eg Denmark for part of the Danish coast, but also in the Faeroes and in Greenland. See Scovazzi, Francalanci, Romano, and Mongardini (eds), Atlas of the Straight Baselines (1989, 2nd ed), Research Study by University of Parma. For the UK’s west coast of Scotland; see Territorial Waters Order in Council 1964, which adopts a straight baseline along the outer limits of the Western Isles.

14  See also Art 5 of the 1958 Geneva Convention.

15  YBILC (1956), ii, p 268. As to the straight baselines claimed by some archipelagic states, see § 214.

See Moore, International Arbitrations, i, pp 900–901.

See Smith, ii, pp 221–41. See also Bases of Discussion, ii, pp 48–55. And see R v Conrad, decided in 1938 by the Supreme Court of Nova Scotia; AD, 9 (1938–40), No 50; State v Ruvido, decided in 1940 by the Supreme Judicial Court of Maine: AD, 9 (1938–40), No 51.

See to the same effect Westlake, i, pp 119, 190; also Johnson, ICLQ, 4 (1951), pp 203–15.

For an elaborate discussion of the status of the Eddystone Rock, see 1977 Award in the English Channel case (Cmnd 7438, 1979), pp 68–76. The question was raised whether the Eddystone Rock was a permissible basepoint; and the Court heard argument on this question. It was decided that it was a permissible basepoint because France had previously accepted it as such both under the 1964 European Fisheries Convention and in the shelf boundary negotiations in 1971. Thus the Court was able to conclude the matter without in fact deciding the status of the rock as an island; see Award, paras 139–43. The argument also involved discussion of what is high water for the purpose of defining an island. See Symmons, The Maritime Zones of Islands in International Law (1979), p 44 for a useful summary of the Award on this point.

The possibility of a safety zone for lighthouses was much debated in the ILC; see YBILC (1952), ii, p 36; also ibid (1954), i, p 92.

See now Art 4 of the l982 Convention: ‘The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.’

For the history of the cannon shot rule, see Walker, BY, 22 (1945), pp 210–31.

A marine mile is the equivalent of one minute of latitude and so is easy to measure on a chart.

The practice favouring the three-mile limit was not even then universal. Norway claimed a breadth of four miles and Spain a breadth of six miles. As regards Norway, see Aubert, RG, 1 (1894), pp 429–41; Boye, Bulletin de l’Institut Intermédiaire International, 18(1)(1928), pp 2–8; and a Memorandum prepared by the Royal Norwegian Committee in November 1924 and entitled The Principal Facts concerning Norwegian Territorial Waters. As regards Sweden, see Gihl, RI, 3rd series, 7 (1926), pp 525–54; Till Fragan om Gransen för Severiges Territorialvattan (1928) (a publication of the Swedish Foreign Office); Gihl, Gransen för Sveriges Territorialvatten (1930); Söderqvist, Droit international maritime suédois (1930). See also generally on the Scandinavian claims, Kalijarvi, AJ, 26 (1932), pp 57–65. As to Iceland, with regard to fisheries, see Böhmert, ZV, 20 (1936), pp 385–433; and as regards Denmark, Norway, and Sweden, Staël-Holstein, RI, 3rd series, 5 (1924), pp 630–79, and ZV, 13 (1926), pp 321–23. As to Russian claims in the Baltic, see Schapiro, BY, 27 (1950), pp 439–80. For an extract from the minutes of the Second Committee of the Codification Conference showing the claims of the various states at that time, see AJ, 24 (1930), Suppl, pp 253–57; and the answers of various states in Bases of Discussion, ii, pp 22–3. As to Greenland fisheries, see Bōhmert, ZV, 21 (1937), pp 18–85.

Among those adhering to the three-mile limit at that time were Great Britain and the British Dominions, the USA, France, Germany, Japan, Belgium, the Netherlands, China, and Poland; among the states claiming a six-mile limit were Italy, Brazil, Spain, Persia, Roumania, Turkey, and Yugoslavia. It may be helpful to reproduce here the statistical estimate made in 1953 by M Francois, the Rapporteur of the International Law Commission, on the subject of the position then prevailing with regard to the claims of various states:

  1. (1)  Countries following the three-mile rule either alone or in combination with a contiguous zone for customs, fiscal or sanitary control not exceeding 12 miles: Australia, Belgium, China, Denmark, Germany, India, Indonesia, Israel, Japan, Liberia, Netherlands, New Zealand, Pakistan, Poland, Union of South Africa, UK, USA.

  2. (2)  Countries following the four-mile rule: Finland, Iceland, Norway, Sweden.

  3. (3)  Countries claiming the six-mile rule: Colombia, Cuba, France (3–6 miles), Greece (10 miles for security purposes), Iran (12 miles for security purposes), Italy (12 miles for security purposes), Lebanon (20 kilometres for fishing purposes), Portugal, Saudi Arabia, Spain, Syria, Turkey (30–60 kilometres for certain purposes), Uruguay, Yugoslavia (10 miles for fishing purposes).

  4. (4)  Countries claiming 12 miles: Bulgaria, Ecuador, Egypt, Guatemala, Roumania, USSR.

The following states raised claims, by reference to the continental shelf, to special rights concerning navigation and/or fishing: Argentina, Chile, Costa Rica, Honduras, Iceland, Korea (South), Mexico, Nicaragua, Panama, Peru.

These included Germany, Belgium, France, and Poland.

See, on the growth of 12-mile claims, Bardonnet, RG, 66 (1962), p 34.

The 200 nautical mile claims were: Argentina, 4 January 1967; Brazil, 25 March 1970; Ecuador, 10 November 1966; Peru, 1 August 1947; El Salvador, 7 September 1950; Panama, 2 February 1967; Sierra Leone, 19 April 1971; Somalia, 10 September 1972; Uruguay, 3 December 1969; Chile, Ecuador and Peru, by a Declaration of 18 August 1952, proclaimed as a ‘principle of their international maritime policy each of them possesses sole sovereignty and jurisdiction over the area of sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast’. This, however, was a precursor of the Exclusive Economic Zone, rather than a 200-mile territorial sea claim: see US State Department Bureau of Intelligence and Research, Limits in the Seas, No 88.

For a list of claims, still of considerable variety, see list as at 30 March 1989, in Ocean Development and International Law, 20 (1989), pp 100–3.

A list of territorial sea and fisheries jurisdiction claims, compiled in 1988, is at UKMIL, BY, 59 (1988), pp 519–21.

An important change from a three-mile territorial sea was enacted in the UK Territorial Sea Act 1987, which provided that ‘the breadth of the territorial sea adjacent to the United Kingdom shall for all purposes be 12 nautical miles’, and thus repealed the three-mile limit set by the Territorial Waters Jurisdiction Act 1878. See also UKMIL, BY, 58 (1987), p 592 for a statement in Parliament on the purposes of the Bill (the Act speaks of the territorial sea ‘adjacent to the United Kingdom’ and therefore did not itself affect eg the territorial sea round the Channel Islands which are not part of the United Kingdom). One immediate reason for the change was the proposed Channel Tunnel: see Parliamentary Debates (Lords), vol 484, cols 381–82, 5 February 1987. See UKMIL, BY, 58 (1987), pp 592–603. See also note in ICLQ, 37 (1988), pp 412–15. For an official view of the relationship between the 1958 and 1982 conventions see UKMIL, BY, 58 (1987), p 612. For controversy about the effect of the 1987 Act upon access by European Community fishermen, see BY, 58 (1987), p 610. For later extension of the 12-mile limit to Bermuda, by the Bermuda (Territorial Sea) Order in Council 1988 (Statutory Instruments 1988 No 1838), see UKMIL, BY, 59 (1988), at p 522; and also p 523 for the Anglo-French Agreement of 2 November 1988 about territorial sea delimitation in the Straits of Dover.

See also Art 12 of the 1958 Geneva Convention. The ILC 1956 draft Art 12 (YBILC (1956), ii, p 271) had employed for the territorial sea a formula similar to that used for boundaries of the continental shelf boundaries between opposite or adjacent coasts, ie agreement, but failing agreement, the equidistance/special circumstances rule. See § 325. The classical work on the median line is Kennedy, Brief Remarks on Median Lines and Lines of Equidistance and on the Methods Used in their Construction (1958), but now also see Beazley, Maritime Limits and Baselines — A Guide to their Delimitation (3rd ed, 1987).

See Evans, Relevant Circumstances and Maritime Delimitation (1989). On the effects of islands on territorial sea boundaries, see Bowett, The Legal Regime of Islands in International Law (1979), especially pp 34–44; Symmons, The Maritime Zones of Islands in International Law (1979); on artificial islands; Papadakis, The International Regime of Artificial Islands (1977); Jayewardene, The Regime of Islands in International Law (1990).

The recognition of the need for some flexibility in the choice of basepoints of a median line, in order to satisfy equitable principles, seems to be implicit in the passage in the English Channel Award between France and the UK in 1977 (ILR, 54 (1977), pp 6–213): ‘In narrow waters such as these, [the waters between the Channel Islands and France] strewn with islets and rocks, coastal States have a certain liberty in their choice of basepoints; and the selection of basepoints for arriving at a median line in such waters which is at once practical and equitable appears to be a matter peculiarly suitable for determination by direct negotiations between the Parties.’

See Art 26 of the 1982 Convention on the Law of the Sea:

1. No charge may be levied upon foreign merchant ships by reason only of their passage through the territorial sea.

2. Charges may be levied upon a foreign merchant ship passing through the territorial sea as payment only for specific services rendered to the ship. These charges shall be levied without discrimination.’

Article 18 of the 1958 Geneva Convention is identical.

Article 24.1 of the 1982 Convention. See also Art 15 of the 1958 Geneva Convention. Note, however, that the Mexican Law concerning Maritime Zones 1985 (ILM, 25 (1986), p 889) provides in Art 28 that ‘any slave who enters the territorial sea in a foreign vessel shall, by that fact alone, gain his freedom and the protection of the laws, as provided in Article 2 of the Political Constitution of the United Mexican States’.

Article 24.2 of the 1982 Convention.

Article 25 of the 1982 Convention; and Arts 15 and 16 of the Geneva Convention.

Article 25.2 of the 1982 Convention.

Cf Art 16 of the 1958 Convention. But cf the right of ‘transit’ passage through or over international straits, for which see § 211.

See Art 18 of the 1982 Convention; see also Arts 14.2 and 14.3 of the Geneva Convention.

Article 19.1 of the 1982 Convention.

Article 24 of the 1982 Convention. On the problems of definition, especially in relation to the Geneva Convention, see Fitzmaurice, ICLQ, 8 (1959), pp 90–103.

Article 19. On Soviet legislation implementing these provisions on innocent passage, see Butler, AJ, 81 (1987), pp 331–47.

On the seizure of the US ship Pueblo off the North Korean coast on 23 January 1968, see AS Proceedings (1969), pp 1–30.

For comment on the matter of the passage of two US naval vessels, a guided-missile cruiser Yorktown and the destroyer Caron, in March 1986, see Butler, AJ, 81 (1987), pp 343–47. See § 155, n 12.

Note the comment of O’Connell, The International Law of the Sea (ed Shearer, vol 1, 1982), p 273, that the convention, ‘by linking innocence explicitly with the list of subject matters within coastal State competence, could have the effect of reversing the presumption of innocence’.

See, however, the important US/USSR Joint Statement of 23 September 1989, which in para 3 states: ‘Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive list of activities that would render passage not innocent. A ship passing through the territorial sea that does not engage in any of these activities is in innocent passage.’

Paragraph 4 adds the following: ‘A coastal State which questions whether the particular passage of a ship through its territorial sea is innocent shall inform the ship of the reason why it questions the innocence of the passage, and provide the ship an opportunity to clarify its intentions or correct its conduct in a reasonably short period of time.’ ILM, 28 (1989), p 1444.

See also Art 14.5, cf Art 19 of the 1982 Convention, which includes ‘any fishing activities’ in kinds of passage ‘prejudicial to the peace, good order or security of the coastal State’. This phrase is itself not without its difficulties.

Article 24 of the 1982 Convention; and Art 17 of the Geneva Convention. See the US/USSR Joint Statement of 23 September 1989, recognising inter alia ‘the need to encourage all States to harmonize their internal laws, regulations and practices’ with the 1982 Convention (ILM, 28 (1990), p 1444).

There is nothing new about this requirement: see Jessup, op cit, ‘it seems clear that even transit vessels must obey reasonable rules and regulations laid down by the littoral State in the interests of safety of navigation and maritime police’ (pp 121 and 122). The question of the limits of jurisdiction of the coastal state over a vessel in innocent passage is often not an easy one; see, for a variety of opinions, R v Bull (1974), ALR, 3, p 171; ILR, 51, p 217 (Aust HC).

See Art 21 of the 1982 Convention:

1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:

(a)  the safety of navigation and the regulation of maritime traffic;

(b)  the protection of navigational aids and facilities and other facilities or installations;

(c)  the protection of cables and pipelines;

(d)  the conservation of the living resources of the sea;

(e)  the prevention of infringement of the fisheries regulations of the coastal state;

(f)  the preservation of the environment of the coastal state and the prevention, reduction and control of the pollution thereof;

(g)  marine scientific research and hydrographic surveys;

(h)  the prevention of infringement of the customs, fiscal, immigration or sanitary regulations of the coastal State.

2. Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.

3. The coastal State shall give due publicity to all such laws and regulations.

4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.’

See Art 22 of the 1982 Convention relating to ‘Sea lanes and traffic separation schemes in the territorial sea’:

The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships.

2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.

3. In the designation of sea lanes and the prescription of traffic separation schemes under this article the coastal States shall take into account:

(a)  the recommendations of competent international organizations;

(b)  any channels customarily used for international navigation;

(c)  the special characteristics of particular ships and channels; and

(d)  the density of traffic.

4. The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given.’

For an example of a ‘Deep Water Route’ outside the Outer Hebrides, adopted by the IMO and published in a Notice to Mariners, see UKMIL, BY, 59 (1988), p 525. For claims arising out of collisions in territorial sea, see The Argonaut and the Colonel Jonas H French (2 December 1921), RIAA, 6, p 60; and The Jesse Lewis (9 December 1921), ibid, p 85. See also § 210 for passage through straits.

See Art 17 of the 1958 Geneva Convention. Article 23 of the 1982 Convention adds certain requirements for ‘foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances’ which, under this Article, would, when exercising the right of innocent passage through the territorial sea, be required to ‘carry documents and observe special precautionary measures established for such ships by international agreements'.

Draft Article 24; see YBILC (1956), ii, p 259. At its sixth session in 1954 the Commission had proposed that warships should be granted innocent passage without need of authorisation. It changed its view after noting the comments of certain governments. See ibid, pp 276–7, see also Annuaire, 34 (1928), p 757.

See Fitzmaurice, ICLQ, 8 (1959) pp 85–88 for former view; and Sørensen, Law of the Sea (1958), International Conciliation No 520 for the latter; also Baldoni, Hag R, 65 (1938), iii, pp 187–303. For a careful summary see Brownlie, Principles of Public International Law (4th ed, p 197; also O’Connell, The International Law of the Sea (ed Shearer, vol 1, 1982), pp 274–98 for a full statement of the history. On this see Juda in Ocean Development and International Law, 21 (1990), 111–16; also Kwiatowska ibid, pp 447–50.

O’Connell and Shearer, op cit, pp 290–91.

Cf Art 23 of the Geneva Convention on the Territorial Sea and the Contiguous Zone 1958.

But for ‘transit rights’ through straits and through archipelagic waters see § 211.

ILM, 28 (1990), p 1444. Paragraph 7 of the Joint Statement provides: ‘If a warship engages in conduct which violates such laws or regulations or renders its passage not innocent and does not take corrective action upon request, the coastal State may require it to leave the territorial sea, as set forth in Article 30 of the Convention of 1982. In such case the warship shall do so immediately.’

See Art 20 of the 1982 Convention and Art 14.2 of the 1958 Geneva Convention. For Russian nuclear submarines in Japanese waters, see Grammig, Harv ILJ (1981), pp 331–54. See also ILM, 24 (1985), p 1715; and Woodliffe, ICLQ, 35 (1986), pp 730–36 for port visits of nuclear ships.

Article 29 of the 1982 Convention; Art 8 of the Geneva Convention on the High Seas. It may be noted that Art 29 which deals with the ‘responsibility of the flag State for damage caused by a warship or other government ship used for non-commercial purposes’, thus lumps together, for this purpose, warships and those other non-commercial, government vessels. But their legal positions in regard to the local law, differ. That entire immunity from all but the flag jurisdiction which is enjoyed by a warship — unless in case of necessity — is surely not enjoyed by other government ships, whatever their function; though government ships used for non-commercial purposes may, of course, have immunity from jurisdiction of the local courts under the ordinary rules of state immunity. See § 292.

See Gidel, Hag R, 48 (1934), ii, pp 212–77. For an example of a state conceding jurisdictional rights in its own territorial waters to another state, see the Treaty of 13 June 1935, between the USA and Mexico, made to facilitate assistance and salvage, by vessels of their own nationality, of vessels of either country in danger or ship-wrecked on the coast or within the territorial waters of the other country. See Wilson, AJ, 30 (1936), pp 494–5.

See Bases of Discussion, ii, pp 78–87. For a useful survey of criminal jurisdiction in the territorial sea, up to the early drafts of the 3rd UN Conference on the Law of the Sea, see Francioni, Ital YBIL, 1 (1975), pp 27–41.

Article 27 of the 1982 Convention; cf Art 19 of the 1958 Geneva Convention. This scheme, as regards (a), (b), and (c), is an adaptation of the rules, evolved in consular treaties, as interpreted by the courts, governing the choice between local or consular jurisdiction over foreign ships in port. On the history of this matter, see the excellent article by Charteris, ’The Legal Position of Merchantmen of Foreign Ports and National Waters’, BY, 1 (1920–21), pp 45–96. Category (d) was an innovation in 1958 but is now probably general law; the 1982 text adds ‘or psychotropic substances’.

See State v Jannopoulos (1974), ILR, 77, p 559 (Naples CA); also R v Dakin & Others (1978), JLR, 15, p 302; ILR, 73, p 179 (Jamaica CA). See also Pianka & Prother v R (1977), JLR, 15, p 175; ILR, 73, p 273, for a Judicial Committee of the Privy Council decision on the legislative power of the coastal state in respect of its territorial sea. See State of Japan v Morimoto (1971), ILR, 59, p 341, for a decision of the Supreme Court of Japan that it had jurisdiction over the fishing of Japanese nationals in foreign territorial waters (Soviet Union waters) ‘adjacent to and integrated with the territorial waters of Japan or the high seas’; and see R v Governor of Brixton Prison, ex parte Minervini [1959] 1 QB 155, an extradition request for an Italian accused of murdering another seaman on a Norwegian vessel which later called at a British port.

Article 27, ss 2, 3, 4 and 5 of the 1982 Convention. And see Francioni in Ital YBIL, 1 (1975), pp 27–41.

Article 28 of the 1982 Convention; Art 20 of the 1958 Geneva Convention is in similar terms.

Public vessels enjoy immunity from the local jurisdiction; see § 292.

As to the effect of consular conventions, see Moore, ii, pp 204–8; Nielsen, AJ, 13 (1919), pp 5–12; Hackworth, ii, paras 139–49 (on jurisdiction in and over ports generally); Colombos, op cit, §§ 147ff. See also the American case of Wildenhus (1886) 120 US 1 ; Hudson, Cases, p 602. As to the jurisdiction over nationals with regard to offences committed on national vessels within the territorial limits of a foreign state, see United States v Flores (1932) 289 US 137. See also US v Reagan (1971), ILR, 57, p 160 (US Ct of Appeals, 6th circuit), where the exercise of German jurisdiction over an American citizen on a US flag vessel in a German port was held not to ‘constitute an assertion of jurisdiction over the matter so as to oust the flag State’s jurisdiction’. See also Ex Parte Molyneux [1972] All ER 471.

See Charteris, BY, 1 (1920), p 45, for a clear description of the origins of the French system, including a translation of the avis.

Eg, Belgium, Brazil, Greece, Italy, Mexico, Norway, Portugal, Yugoslavia.

(1859), Dalloz, vol 1, p 88; for references to other cases, see O’Connell, International Law (1970), vol II, pp 624–5. See also the Wildenhus Case (1887) 120 US 1 in which the US Supreme Court, applying a consular treaty with Belgium, which incorporated the French division of port jurisdiction in criminal matters, held likewise that the murder of one Belgian crew member by another Belgian crew member, on board a Belgian ship in dock in Jersey City, ipso facto disturbed the public peace of the port and that the local jurisdiction might therefore be exercised and the local criminal law applied.

Cunard SS Co v Mellon (1923) 262 US 100, 124. Nevertheless in that case the Court also said (p 123): ‘And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require’.

See Bases of Discussion, ii, Territorial Waters, C 74 M 39 (1929), v, at p 99. This is an invaluable source of state opinion generally on the territorial sea and related matters in 1929.

For an arrest on a foreign vessel resulting from an extradition request from a third country, see the Eisler Case, BY, 26 (1949), p 468. On the question of the jurisdiction of the littoral state over persons under detention on board foreign merchantmen entering its ports see Hall, Foreign Powers and jurisdiction of the British Crown (1984), at p 81; R v Keyn (1876) 2 Ex D, at p 83; and the case of Tulop and Sziber in New South Wales in May 1922, discussed by Charteris, JCL, 3rd series, 8(1926), pp 246–9. See also, in connection with the Insull case Makarov, ZöV, 4 (1934), pp 618–25. For the reach of a customs law over a foreign vessel in port, see Steenholf v Collector of Customs (1959), ILR, 31, p 241; and Benz v Campania Naviera Hidalgo (1956) 353 US 138; ILR, 24, p 167; and Navios Corpn v National Maritime Union of America (1960), ILR, 31, p 230 (picketing a ‘flag of convenience vessel’ in port).

10 NY ed 218, 176 NE 2d 719; (1963) 372 US 10; also AJ, 57 (1963), p 659. See however the decision of a Belgian court, in SS St Marcos (1977), ILR, 77, p 413 where action by a union to impede the departure from Antwerp of a vessel under a flag of convenience, was held unlawful and the vessel was ordered to be provided with pilotage to leave the port.

10  See E Lauterpacht, The Contemporary Practice of the United Kingdom in the Field of International Law (vol I, 1962), pp 18–22; also ILM, 1 (1962), pp 58–63.

But note also the possible effect of s 5 of pt XII of the Convention on the Law of the Sea 1982, which on the Convention coming into force would provide for enforcement of rules and standards to prevent, reduce and control pollution of the marine environment. These elaborate articles envisage enforcement not only by flag states (Art 217) but also by port states (Art 218) and in certain circumstances even by coastal states (Art 220) in respect of violations in the territorial sea or exclusive economic zone.

11  (1963) 372 US 10; ILR, 34, p 51. See State v Jannopoulos (1974), ILR, 77, p 559 where a Naples court acquitted a Greek seaman who possessed marijuana on board a Cypriot vessel in port, but there was no evidence of an intention to dispose of it in Italy.

See Marshall CJ’s decision in Hallet & Browne v Jenks (1805) 3 Cranch 210; for question of freeing slaves aboard vessels entering in distress, see The Creole (1853), Moore, International Arbitrations, p 4375; see also The Rebecca, decided on 2 April 1929, by the US-Mexican Claims Commission: AD, 9 (1929–30), No 82. See also The May v The King, The Queen City v The King and other ships (1931) Can SCR 374, 387; (1931) 3 DLR 15, 147; and Cashin v The King, Can LR [1935] Ex CR 103, on the meaning of ‘stress of weather and other unavoidable cause’.

See also Laing, AJ, 26 (1932), pp 374–79. See Lord Stowell in The Eleanor (1809), Edward’s Admiralty Reports, 135, at pp 159, 160: ‘Real and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws.’

TS No 24 (1925), Cmd 2419; LNTS, 58 (1978–79), p 284, summary in BY, 5 (1924), pp 200–201. See also de Visscher, Le Droit international des communications (1924).

ILM, 4 (1965), p 502; TS No 46 (1967).

It is an ancient practice that states may reserve the coastal trade — cabotage — for ships of their own flag; and it has been usual to reserve cabotage in commercial treaties. See Oppenheim in the 3rd ed of this vol, and also LQR, 24 (1908), pp 328–34.

The matter is treated by Moore, i, § 151; Brierly, BY, 14 (1933), pp 155–7; Higgins and Colombos, The International Law of the Sea (2nd ed, 1951), paras 111–20 and, in particular, by Gidel, Le Droit international public de la mer (vol iii, 1934), pp 361–482, and in Hag R, 48 (1934), ii, pp 241–73, and in Bases of Discussion, ii, pp 87–91. See also McDougal and Burke, The Public Order of the Oceans (1962), ch 6. See also Hall, Foreign Powers and Jurisdiction of the British Crown (1894), paras 108–9; Annuaire, xiii (1894), p 135; Smith, ii, pp 165–221; the British so-called Hovering Acts 1935 and 1947 (9 Geo 2, c 35 and 24 Geo 3, c 47) have been repealed. See Jessup, AJ, 31 (1937), pp 101–6, and Briggs, RI, 3rd series, 20 (1939), pp 217–55. See also The Reidun on the interpretation of the term ‘customs waters’ used in the 1935 Act: 14 F Supp 771; 15 F Supp 112; AD, 8 (1935–37), No 81. See on protective jurisdiction generally The People v Stralla, decided in 1939 by a Californian Court: AD, 9 (1938–40), No 101; Re Martinez and Others, ILR, 28, p 170; also Croft v Dunphy [1933] AC 156, where Lord MacMillan said: ‘But whatever may be the limits of territorial waters in the international sense, it has long been recognised that, for certain purposes, notably those of police, revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory’ (at p 162).

For an excellent account of the development of the contiguous zone, see Lowe, op cit; also Pazarci, Rev Belge, 18 (1984–85), pp 249–71.

Article 24.

Article 24.2.

Note, however, that Art 86 in pt VII, which part deals with the high seas, provides that pt VII applies to all parts of the sea not included in the exclusive economic zone, in the territorial sea, internal waters, or archipelagic waters.

Cf Brownlie, Principles of Public International Law, p 210, for the view that a contiguous zone must be claimed. It would seem, however, that a municipal law decree is sufficient.

With regard to vessels lying outside the territorial sea, but communicating by means of the ship’s boats, or of boats sent out from the shore, with the territory or with the territorial sea, see Hughes, AJ, 18 (1924), pp 232–3; also the classic cases of The Grace and Ruby (1922), 283 Fed 475; The Henry L Marshall (1923) 292 Fed 486. But cf the Pulos case (1976), ILR, 77, p 587 where a Naples court exercised a similar jurisdiction under Art 2 of the 1958 Geneva Convention on the High Seas. For later developments in the US, see Coastal Zones Management Act, ILM, 12 (1973), p 108.

Extended jurisdiction over vessels of particular nationality or nationalities may also be acquired as a treaty right: see eg the Anglo-American Liquor Treaty 1924, TS No 22 (1924), Cmd 2199; also United States v Henning et al (1925) 7 F 2nd 488, also in AJ, 23, Suppl (1929), p 279; also Jessup, The Law of Territorial Waters and Jurisdiction (1927), pp 68–9; Gidel, Le Droit international public de la mer (vol iii, 1934), p 677; McDougal and Burke, The Public Order of the Oceans (1962), pp 389–90. On the question whether the treaty limits (one hour’s steaming distance from the coast) could be treated in all respects as territorial sea, see The I’m Alone, AJ, 29 (1935), p 329; Fitzmaurice, BY, 17 (1936), pp 82–111. (For writings on the Liquor Treaties and the jurisprudence, see the 8th ed of this vol, p 499, n 1.)

See also the Exchange of Notes of 13 November 1981, between the UK Government and the US Government, concerning cooperation in the suppression of the unlawful importation of narcotic drugs into the USA: TS No 8 (1982), Cmnd 870. It is fully described (and the text printed as an appendix) by Siddle, ICLQ, 31 (1982), pp 726–47. The agreement permits US authorities to board private British vessels on the high seas in the Gulf of Mexico, the Caribbean Sea or on the Eastern seaboard, to search for drugs destined for unlawful importation into the US. See also the decision of a German Federal Fiscal Court in the Oil Tanker Officer Tax Liability Case (1977); ILR, 74, p 204, where the question was whether the FRG/Liberia Double Taxation Agreement applied to a person domiciled in the FRG but serving on a Liberian tanker permanently connected to the Nigerian coast by pipeline but outside territorial sea.