Anthony Aust. Handbook of International Law

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(no loitering), except for stopping and anchoring which is incidental to ordinary navigation, or made

necessary by force majeure or distress or to help persons, ships or aircraft in danger or distress

(Article 18).

The inclusion of ‘innocent’ means that passage must not be prejudicial to the ‘peace, good order

or security’ of the coastal state (Article 19). That Article lists twelve activities which are considered

prejudicial, including: weapons exercises or practice; espionage; launching or landing aircraft;

loading or unloading of commodities, currencies or persons; wilful and serious pollution; any fishing

activities; research or surveying; interference with coastal communications; any threat or use of

force in violation of the UN Charter; and ‘any activity not having a direct bearing on passage’. If

passage is not innocent, the coastal state can take the necessary steps within its territorial sea to

prevent it (Article 25(1)), usually by requiring the ship to leave, or arresting it if it has breached its

laws. The coastal state may also, without discriminating between foreign ships, temporarily suspend

innocent passage when this is essential to protect its security (Article 25(3)).

Article 23 recognises that nuclear-powered ships can exercise the right of innocent passage, as

well as ships carrying nuclear or ‘other inherently dangerous or noxious substances’; provided they

carry appropriate documents and observe special precautionary measures established by international

agreements. Although Article 22(2) allows coastal states to require such ships (as well as tankers) to

confine their passage to certain sea lanes, some states go further and wrongly assert the right to

require prior authorisation for such passage. Many parties assert the right to regulate or even prohibit

passage through the territorial sea (and sometimes archipelagic waters, contiguous zones to EEZs)

for security reasons: see the various reservations and declarations made on ratification.

Rights of the coastal state over ships in innocent passage

The right of innocent passage has to be balanced with the right of the coastal state to protect its

legitimate interests. It can therefore make laws and regulations relating to innocent passage in the

following areas: protection of navigational aids and of cables and pipelines; conservation of marine

living resources (principally fish); environmental protection; scientific research; the prevention of

infringement of customs, fiscal, immigration and sanitary laws; and the safety of navigation (Article

21). Charges cannot be levied on foreign ships by reason only of their innocent

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passage. Such charges may only be made for specific services rendered to them and levied on a non-

discriminatory basis (Article 26).

In applying its laws and regulations, the coastal state must not impose requirements or enforce its

laws and regulations in a way which would have the effect of denying or impairing the right of

innocent passage, or which are discriminatory (Article 24). Thus, the coastal state should

not

arrest a person on board a foreign ship, or investigate a crime committed on it, if the crime was

committed before the ship entered the territorial sea, unless it entered from the internal waters of the

coastal state. Nor should the coastal state exercise criminal jurisdiction if the crime was committed

during the passage of the ship through the territorial sea unless the ship has just left the internal

waters, the crime has an effect on the coastal state, local help has been requested or drug trafficking

is involved. In such cases, the master of the ship can require the coastal state to inform a diplomatic

or consular representative of the flag state of the action to be taken (Article 27). Similarly, the

coastal state must not arrest a foreign ship for the purpose of civil proceedings when it is passing

through its territorial waters unless the matter relates to obligations undertaken or liabilities incurred

by the ship itself or is related to the passage (Article 28(2)).

The coastal state has a duty to warn all shipping of any known danger to navigation within the

territorial sea (Article 24(2)).

This applies to man-made and natural dangers, such as volcanic

eruptions.

For the position of warships and other state ships, see p. 317 below.

Contiguous zone

The term ‘contiguous zone’ is less well known. It can extend beyond the territorial sea, but not

further than twenty-four nautical miles from the baselines from which the territorial sea is measured

(Article 33). Only about one-third of coastal states have established a contiguous zone. Within the

zone the coastal state is entitled to exercise the control necessary to prevent and punish

infringements of its customs, fiscal, immigration and sanitary laws and regulations when committed

within its territory or territorial sea.

Exclusive economic zone

The exclusive economic zone (EEZ) is an area adjacent to the territorial sea and extending up to 200

nautical miles from the baselines from which

17. The rule is one of comity (see p. 12 above).

18. See also Corfu Channel (UK . Albania) (Merits), ICJ Reports (1949), p. 4; 16 ILR 155.

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the territorial sea is measured (Articles 55 and 57). Previously, most of the area would have been

high seas, and so the EEZ, not being under the sovereignty of the coastal state, does not have the

same legal character as the territorial sea. Instead, it is a zone in which the coastal state enjoys only

sovereign rights for certain purposes.

Unlike the continental shelf, the rights to which are inherent, an EEZ has to be formally

established by the coastal state, and most have done so. A few, such as the United Kingdom, have

limited themselves to establishing an exclusive fisheries zone (EFZ). Nearly all states which

previously claimed a 200 nautical mile territorial sea (especially South American) have now

replaced them with EEZs. Because of their breadth, two or more EEZs may well overlap, and so

there may well be a need to delimit the boundary between them.

The EEZ is a recent development. It is particularly important for developing countries since it

gives them substantial rights over natural resources within the EEZ. The vast majority of fish stocks

are found within 200 nautical miles from the coast. Most overseas territories have also had EEZs

established for them.

Rights, jurisdiction and duties of the coastal state in the EEZ

In the EEZ the coastal state has sovereign rights for the purpose of exploring, exploiting, conserving

and managing the natural resources, whether living (e.g. fish) or non-living (e.g. oil) of the

superjacent waters (above) the seabed and of the seabed and its subsoil (Article 56(1)(a)). Thus, the

coastal state has the exclusive right to exploit oil and gas deposits within its EEZ, that right being

exercised in accordance with the rules governing the regime of the continental shelf (see below).

(Regulation of fishing is discussed at pp. 316 and 318-22 below.)

In addition, the coastal state enjoys limited jurisdiction

within the EEZ with regard to certain

matters (Article 56(1)(b)):

The construction of artificial islands, installations and structures (e.g. oil platforms). The

coastal state has the exclusive right to authorise and regulate the construction, operation and

use of such structures and to establish safety zones (normally no more than 500 metres in

breadth) around them (Article 60).

Marine scientific research. The coastal state should normally give consent for pure science, but

can withhold it if the research is of direct

19. This is less than sovereign rights.

20. And see p. 309 below.

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significance for the exploration and exploitation of natural resources (Article 246(5)). Consent

is normally implied if the application contains all the necessary information and, within four

months of its receipt, the coastal state has not indicated otherwise or asked for more details

(Article 252).

The protection and preservation of the environment, chiefly from pollution by ships and oil

platforms (see pp. 341-3 below).

Rights and duties of other states in the EEZ

Although the EEZ is no longer part of the high seas, certain important high seas freedoms can still

be exercised in an EEZ (Article 58), the first being freedom of navigation by foreign ships, subject to

the coastal state’s powers in respect of pollution. However, a number of developing countries have

legislated or proposed legislation that purports to restrict this basic freedom for shipping in the

EEZ.

And in 2002, following the Prestige disaster that caused serious oil pollution of Spanish

beaches, France, Portugal and Spain proposed the banning from their EEZs of elderly, single-hulled

foreign oil tankers. Since this would infringe the freedom of navigation, the measure would first

have to be agreed with other states through an international organisation such as the IMO, and then

fifteen months’ notice given. Secondly, all foreign aircraft enjoy the freedom of overflight of the

EEZ, to which the ICAO Rules of the Air apply, not the laws and regulations of the coastal state.

Thirdly, states enjoy the freedom to lay submarine cables and pipelines in the EEZ, although the

course taken by a pipeline is subject to the consent of the coastal state (Article 79(3)).

International straits

An international strait is a passage used for international navigation that connects one part of the

high seas or an EEZ with another part of the high seas or an EEZ (Article 37). It has to be wider than

twenty-four nautical miles; otherwise it could consist of territorial sea only. The Convention regime

does not apply if ( ) the strait has a high seas or an EEZ route through it of similar convenience;

( ) the strait is formed by an island bordering the strait and the mainland; ( ) the strait connects

part of the

21. See Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999, pp. 170–3.

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high seas or an EEZ with the territorial sea of a third state; or ( ) the legal regime of the strait is

regulated by a long-standing treaty.

In the first three cases, navigation of the strait will be

governed by the rules on innocent passage through the territorial sea or freedom of navigation

through the EEZ or the high seas, as appropriate.

In all other cases, the regime of the Convention creates a right of transit passage through

international straits. This right is greater than innocent passage through the territorial sea, but is less

than freedom of navigation on the high seas. Transit passage means navigation (and overflight)

solely for the purpose of ‘continuous and expeditious’ transit from one part of the high seas or an

EEZ to another part of the high seas or an EEZ, including passage for the purpose of entering,

leaving or returning to a state bordering the strait (Article 38(2)). If an activity is not in accordance

with these conditions, such as anchoring, the passage will be subject to the regime of the territorial

sea or the EEZ, as the case may be, unless it is rendered necessary by distress or force majeure

(Article 39(1)(c)).

Archipelagos

Articles 46–54 make special provision for archipelagos. An archipelagic state may draw straight

archipelagic baselines joining the outermost points of the outermost islands of the archipelago

(Article 47). For this purpose an archipelagic state is one constituted wholly by one or more

archipelagos and perhaps other islands. An archipelago is a group of islands, interconnecting waters

and other natural features which are so closely interrelated that they form an ‘intrinsic geographical,

economic and political entity’, or which historically have been so regarded (Article 46). Fiji,

Indonesia, the Philippines and Tonga are prime examples; the Færoes are not because Denmark is a

state with a mainland, and therefore not constituted wholly by one or more archipelagos or islands.

Nevertheless, the straight baselines (see below) drawn around the Færoes have been recognised by

several states. If the archipelagic state is constituted by more than one archipelago, the straight

baselines are drawn around each archipelago.

The waters inside the baselines, other than internal waters, are archipelagic waters over which the

state has sovereignty (Article 49).

22. Such as the Montreux Convention 1936 regulating the Bosphorus and the Dardanelles, 173 LNTS

213; UKTS (1937) 30.

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The territorial sea is measured from those baselines in the usual way. Since the drawing of the

baselines will cut off large areas of sea, the archipelagic state must respect the traditional fishing

rights of neighbouring states. Although foreign ships have the right of innocent passage through

archipelagic waters, they, and foreign aircraft, enjoy the more extensive right of ‘archipelagic sea

lanes passage’, which is similar to transit passage through straits (Articles 52–54).

Continental shelf

The continental shelf took on enormous economic importance in the second half of the twentieth

century with the exploitation of offshore oil and gas reserves. It comprises the seabed and subsoil of

the submarine areas that extend beyond the territorial sea of a coastal state throughout the natural

prolongation of the land territory to either (1) the outer edge of the continental margin or (2) 200

nautical miles from the baselines from which the breadth of the territorial sea is measured,

whichever is the greater (Article 76(1)). The continental margin is defined in geophysical terms as

comprising (a) what is more properly called the continental shelf, that is, that section of the seabed

that gradually slopes from the low-water mark to an average depth of 130 metres, from where it

descends more steeply, (b) the slope, that is, the following section which descends more steeply, and

metres. Beyond that is the deep ocean floor (see Article 76(3).

Article 77(4)–(7) contains an

exceptionally complex, technical formula for establishing the outer edge of the continental margin.

A coastal state exercises sovereign rights (not sovereignty) over its continental shelf for the

purposes of exploring it and exploiting its natural resources. These rights are inherent; unlike an

EEZ, they do not have to be proclaimed and do not depend on occupation. They are also exclusive;

if the coastal state chooses not to explore or exploit the natural resources, no other state may do so

without its express consent. The natural resources are mineral or other non-living resources of the

seabed and subsoil, as well as living organisms belonging to sedentary species, such as molluscs

(Article 77(4)).

23. See Churchill and Lowe, The Law of the Sea, 3rd edn, Manchester, 1999, p. 30.

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A state that wishes to establish an outer limit of its continental shelf beyond the 200 nautical mile

limit is required to submit information to the Commission on the Limits of the Continental Shelf

(CLCS)

within ten years of becoming a party to UNCLOS (see Article 76 and Annex , Article

4).

The CLCS will then make ‘recommendations’ to coastal states, and limits established by a

coastal state on the basis of the recommendations are ‘final and binding’ (Article 76(8)). In October

2004, Denmark announced that it would carry out a hydrographic survey of Greenland’s northern

continental shelf, which may extend as far as the North Pole. If so, this could lead to difficult

delimitation problems with other states with territory in the area.

Construction of artificial islands and other installations in the EEZ or on the

continental shelf

The coastal state has the exclusive right to authorise and regulate the construction, operation and use

of artificial islands, installations and structures (such as oil drilling rigs) in its EEZ or on its

continental shelf (Articles 60 and 80). It also has exclusive jurisdiction over them. Notice must be

given of construction, and various safety measures must be taken. Safety zones up to 500 metres in

extent may be established. Artificial islands, installations and structures do not possess the status of

islands, have no territorial sea and their presence does not affect delimitation.

Delimitation

A delimitation

problem arises only when the claims to territorial seas, EEZs or continental shelves

of two or more states overlap. The delimitation of maritime boundaries is a fertile ground for

disputes between states. Many are resolved by negotiation,

others by referring the dispute to an

international court or arbitral tribunal. The cases raise complex issues of law and fact, the facts

naturally being unique in each case. This is therefore not the place to attempt a detailed survey of the

principles. Any

24. See Annex to the Convention, and the CLCS website, www.un.org/Depts/los/clcs/.

25. In 2001, a meeting of the states parties decided to extend the ten-year period for those states (mostly

developing) for which the Convention entered into force before 13 May 1999. For them the period begins

on that date: SPLOS/72 (www.un.org/Depts/los/).

26. See p. 361 below on the Arctic.

27. See p. 34 above as to the meaning.

28. See the Denmark–UK Agreement on the Maritime Delimitation of the Area between the Færoes and

the United Kingdom, UKTS (1999) 76.