The seas have historically performed two important functions: first, as a medium of communication; and secondly, as a vast reservoir of resources, both living and non-living. Both of these functions have stimulated the development of legal rules. The fundamental principle of governing the law of the sea is that : “the land dominates the sea” and so that land territorial situation constitutes the starting point for the determination of the maritime rights of a coastal state.

The seas were at one time thought capable of subjection to national sovereignties. The Portuguese in particular in the seventeenth century proclaimed huge tracts of the high seas as part of their territorial domain, but these claims stimulated a response by Grotius who elaborated the doctrine of open seas, whereby the oceans as res communis (a thing of the entire community) international law were to be accessible to all nations but incapable of appropriation. This view prevailed, partly because it accorded with the interests of the North European States, which demanded freedom of the seas for the purposes of exploration and expanding commercial intercourse with the East.”

DEFINITION OF SOME IMPORTANT TERMS IN THE LAW OF THE SEA TOPIC

Internal Waters

Internal waters are all the waters that fall landward of the baseline, such as lakes, rivers, and tidewaters. States have the same sovereign jurisdiction over internal waters as they do over other territory. There is no right of innocent passage through internal waters.

Territorial Sea

• Everything from the baseline to a limit not exceeding twelve miles is considered the State’s territorial sea. Territorial seas are the most straightforward zone. Much like internal waters, coastal States have sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to the seabed and subsoil, as well as vertically to airspace.
• While territorial seas are subject to the exclusive jurisdiction of the coastal States, the coastal States’ rights are limited by the passage rights of other States, including innocent passage through the territorial sea and transit   passage   through   international    straits.   This   is   the   primary distinction between internal waters and territorial seas.
• There is no right of innocent passage for aircraft flying through the airspace above the coastal state’s territorial sea.

Contiguous Zone

States may also establish a contiguous zone from the outer edge of the territorial seas to a maximum of 24 nautical miles from the baseline. This zone exists to bolster a State’s law enforcement capacity and prevent criminals from fleeing the territorial sea. Within the contiguous zone, a State has the right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and territorial sea. Unlike the territorial sea, the contiguous zone only gives jurisdiction to a State on the ocean’s surface and floor.³ It does not provide air and space rights.

Exclusive Economic Zone (EEZ)

States may claim an EEZ that extends 200 nautical miles from the baseline. In this zone, a coastal State has the exclusive right to exploit or conserve any resources found within the water, on the sea floor, or under the sea floor’s subsoil. These resources encompass both living resources, such as fish, and non- living resources, such as oil and natural gas.⁴ States also have exclusive rights to engage in offshore energy generation from the waves, currents, and wind within their EEZ. Article 56 of UNCLOS 1982, also allows States to establish and use artificial islands, installations and structures, conduct marine scientific research, and protect and preserve the marine environment through Marine Protected Areas.

Continental Shelf

The continental shelf is a natural seaward extension of a land boundary. This seaward extension is geologically formed as the seabed slopes away from the coast, typically consisting of a gradual slope (the continental shelf proper), followed by a steep slope (the continental slope), and then a more gradual slope leading to the deep seabed floor. These three areas, collectively known as the continental margin, are rich in natural resources, including oil, natural gas and certain minerals.

The UNCLOS allows a State to conduct economic activities for a distance of 200 nautical miles from the baseline, or the continental margin where it extends beyond 200 nautical miles.

High Seas and Deep Ocean Floor

The ocean surface and the water column beyond the EEZ are referred to as the high seas .Seabed beyond a coastal State’s EEZs and Continental Shelf claims is known under the UNCLOS as the Area. The UNCLOS states that the Area is considered “the common heritage of all mankind”12 and is beyond any national jurisdiction.

States can conduct activities in the Area so long as they are for peaceful purposes, such as transit, marine science, and undersea exploration.

Innocent Passage: The doctrine of innocent Passage

The 1958 Convention on the Territorial Waters and Contiguous zones made it clear that the coastal state exercises sovereignty over the territorial water. But this is subject to certain exceptions. For example, the ships of other states are entitled to get passage through this part of the sea. In other words, we may say that although the coastal state exercises sovereignty over this part of the sea, yet it is the duty of the coastal state to provide innocent passage to the ships of other states. Moreover, it has also to provide facilities for laying cables, etc. In short we may say that the coastal state exercises sovereignty over this part of the area and exercises general control over this area, but for international transport and communication some facilities are provided to other states.

What is the Meaning of Innocent?

• The word “innocent” finds elucidation in Article 19 of the UN Convention on Law of the Sea which states that passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state.¹⁰
• In corfu Channel Case, the ICJ ruled that during peace time the warships of the other states may pass through the territorial waters of a state. In this case the court held that Albania was guilty of causing loss to the British ships by firing at them or otherwise by laying mines in that part of the sea and it was, therefore, a clear violation of international law and the court gave the verdict that Albania should pay appropriate compensation to Britian for this violation.
• Thus it is a well recognised principle of customary international law that foreign merchant vessels have a right of ‘innocent passage’ through the territorial waters.

Case Law on Continental Shelf: North Sea Continental Shelf Cases (1969)

Germany v Denmark & Netherlands, 1969

• Issues was what principles governed the delimitation of maritime boundaries
• ICJ held that equidistance-special circumstances rule in 1985 Convention not binding on Germany because Germany was not party. Court emphasized “equitable principles” and natural prolongation of land territory
• Result was two “camps” and great difficulty reaching agreement on language in Article 74(1) & 83(1) in UNCLOS

In this case, the court interpreted Article 6 of the Geneva Convention on Continental Shelf and held that the principle of equidistance was not obligatory in all cases of delimitation of continental shelf. The court also clarified the general concept of continental shelf which made a great impact on state practice and development of International Law in this respect.

2^ND CASE LAW: Libya v Tunisia, ICJ Report 1982.

In this case, unlike most previous cases, where any one party to the litigation argued for equitable principles and the other party for equidistance, in the present cases, both parties strongly endorsed the use of equitable principles, and both denied the mandatory applicability of the 1958 Convention’s equidistance rule. The parties also took the same task in trying to utilise the principle of natural prolongation and in attempting to list all relevant circumstances.

Republic of Italy v Union of India, 2013,SCC

• This case is concerned with the killing of two Indian Fisherman who were mistook by the Italian submarine as a private vessel. The supreme court discussed India’s entitlement to claim sovereignty. The court observed:
  • “ Undoubtedly, the incident took place within the contiguous zone over which, bother under the provisions of the Maritime Act, 1976 and UNCLOS, 1982, India is entitled to exercise rights of sovereignty. However, as decided by this court in Aban Loyd Chiles Offshore LtD v.Union of India,2008,….sub section(4) of section 7 only provides for the Union of India to have sovereign rights limited to exploration, exploitation, conservation and management of the natural resources, both living and non-living, as well as for producing energy from tides, winds and currents, which cannot be equated with rights of sovereignty over the said areas in the exclusive economic zone.
  • The court further observed:

…while India is entitled both under its domestic law and the public international law to exercise rights of sovereignty upto 24 nautical miles from the baseline on the basis of which the width of the territorial waters is measured, it can exercise only sovereign rights within the exclusive zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the contiguous zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of the UNCLOS, 1982….’Declaration on Principles of International Law Concerning Family Relations and Cooperation between states in accordance with Charter of the United Nations has to be conducted only at the level of the federal or central government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.