HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

ACADEMIC SESSION 2024-25

PUBLIC INTERNATIONAL LAW
LAW RELATING TO CONTIGUOUS ZONE

Submitted by: Submitted

to:
Rahul Meena Dr. Chandreshwari
Minhas
VII Semester (Associate Professor of Law)
Roll no. 1020212234
Abstract
Sea is a large body of water that is surrounded by the land. It is a crucial part of human trade and
commerce, voyage, mineral extraction, power generation and is also considered as an essential
source of blue economy nowadays. International law of the sea is a law of maritime space that
peacefully settles the global disputes on maritime boundary between or among the States and
defines various jurisdictions of the maritime zones as well as the rights and obligations of the
coastal States in these zones, especially with regard to the conservation of marine environment
and biodiversity. The key objective of this piece of academic research is to demonstrate a brief
overview of the international law of the sea with a special emphasize on the sources and legal
framework of this law. This study also strives to focus the civil and criminal liability,
jurisdictions, rights and obligations of the coastal states with regard to the different maritime
zones. Furthermore this study delineates the rules and extent of using these maritime zones in the
light of various treaty provisions on the international law of the sea where different adjudicated
cases are also presented along with a profound scrutiny upon their fact, issues, judgment and
reasoning.
 Law relating to Contiguous Zone
Introduction
International law of the sea is that part of public international law that regulates the rights and
obligations of States and other subjects of international law, regarding the use and utilization of
the seas in peace time ( Brown, 1994 ). It is distinguished from the private maritime law that
regulates the rights and obligations of private persons with regard to maritime matters, e.g., the
carriage of goods and maritime insurance ( Churchill & Lowe, 1999 ). Law of the sea was
developed as part of the law of nations in the 17 th century with the emergence of the modern
national State system ( O’Connell, 1982 ). The seas of the world have historically played two key
roles: firstly, as a means of communication, and secondly, as an immense reservoir of both living
and non-living natural resources. Both of these roles have encouraged the development of legal
rules ( Shaw, 1997: p. 390 ). No branch of international law has undergone more radical changes
during the past four decades than has the law of the sea and maritime highways ( Starke, 1994: p.
242 ). Law of the sea is concerned with the public order at sea and much of this law is codified in
the UN Convention on the Law of the Sea (UNCLOS) ( Churchill, 2013 ).
In the international jurisdictions disputes may frequently be arisen among the neighboring
coastal States regarding the delimitation of maritime boundary, exploitation of minerals or
natural resources, commission of any crime in the territorial boundary of another State, etc.
These disputes are generally resolved by the international courts or tribunals on the basis of
complaints filed by the parties concerned following the rules of international law of the sea or
following the precedents as a pivotal source of international law. This study, however, is
concerned with those rules of international law usually referred to as “the law of the sea” and is
intended as a starting point for research on the law of the sea. This research work especially deals
with the broader area of the sea law that evidently involves consideration of matters mainly of
the base line, inland waters, territorial sea, contiguous zone, Exclusive Economic Zone (EEZ),
high sea and continental shelf.
2. Research Methodology
The paper is descriptive in nature which is actually based on a short research. Having regard to
the nature of the article, in preparing the same, analytical method has been resorted to. It is
entirely based on the secondary sources collected from Text-books on International Law,
Journals Articles, Newspapers, Adjudicated Cases, and Websites etc. The collected sources have
been presented in past form in order to make the study more informative, analytical and useful
for the readers. Also in this study the contemporary adjudicated cases on international law of the
sea are elaborately explained so that the jurisdiction, rights and obligations of different subjects
of international law can plainly be understood.
3. International Law of the Sea: Legal and Institutional Framework
It should not be wise to presume that the law of the sea is to be found only in one place; rather
the present law is a mixture of customary international law and treaty law, both bilateral and
multilateral.
3.1. The Four Geneva Conventions on Territorial Waters and Contiguous Zone, 1958
The first UN Conference on the law of the sea was held in 1958 in Geneva. In this conference
four multilateral conventions covering various aspects on the law of the sea were adopted: 1)
Convention on the Territorial Sea and Contiguous Zone; 2) Convention on the High Seas; 3)
Convention on Fishing and Conservation of Living Resources; and 4) Convention on the
Continental Shelf. All these conventions are in force, though in many aspects they have been
superseded by the 1982 UN Convention on the Law of the Sea which is mainly of general
application, i.e., it is not confined to one specific aspect of the law of the sea. For non-parties to
the 1982 Convention and for those matters on which the 1982 Convention is silent, the 1958
Conventions will continue to govern the relations of States that have ratified them. For States
that are neither party to the 1982 Convention nor to the 1958 Conventions, the relevant law is the
customary ( Dixon, 2005: p. 196 ).
3.2. The UN Convention on the Law of the Sea (UNCLOS, 1982)
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and
development of contemporary international law governing the sea in time of peace ( Abdurrahim,
2012 ). The UNCLOS, also called the Law of the Sea Convention, is a global agreement that
resulted from the third UN Conference on the Law of the Sea (UNCLOS III), which took place
between 1973 and 1982. This treaty is considered to be the “constitution of the oceans” and
represents the result of an unprecedented, and so far never replicated, effort at codification and
progressive development of international law ( Treves, 2013 ). Maritime jurisdictions are now
governed mainly by the 1982 UN Convention on the Law of the Sea. The comprehensive 1982
Convention that replaced the 1958 four conventions on the law of the sea consists of 320 articles
and 9 annexure was concluded in 1982. The UNCLOS is intended to govern the use of oceans
for fishing, shipping, exploration, navigating and mining and it is the most complete treaty in
public international law that covers a range of law of the sea topics, e.g. delimitation of maritime
boundaries, maritime zones, marine environment protection, marine scientific research, piracy
and so on. This Convention represents the most significant development in the whole history of
the rules of international law regarding the high seas ( Starke, 1994: p. 242 ). The greater part of
the convention, containing the more significant rules therein enunciated much the previous law
was thereby changed; appear now to command the general consensus of the world community.
3.3. Salient Features: The UN Convention on the Law of the Sea, 1982
A careful list of the main substantive provisions of the Convention, focusing on those, introduces
changes or new concepts in the traditional law of the sea would seem to include the aspects
( Treves, 2013 ): a) The maximum width of the territorial sea is fixed at 12 miles and that of the
contiguous zone at 24 miles; b) A “transit passage” regime for straits used for international
navigation is established; c) States consisting of archipelagos, provided certain conditions are
satisfied, can be considered as “archipelagic States”, the outermost islands being connected by
“archipelagic baselines” so that the waters inside these lines are archipelagic waters; d) A 200-
mile exclusive economic zone including the seabed and the water column, may be established by
coastal States in which such States exercise sovereign rights and jurisdiction on all resource-
related activities; e) Other States enjoy in the exclusive economic zone high seas freedoms of
navigation, over flight, laying of cables and pipelines and other internationally lawful uses of the
sea connected with these freedoms; f) A rule of mutual “due regard” applies to ensure
compatibility between the exercise of the rights of the coastal states and of those of other states
in the exclusive economic zone; g) The concept of the continental shelf has been confirmed,
though with newly defined external limits; h) The International Seabed Authority being the
“machinery” entrusted with the supervision and regulation of exploration and exploitation of the
resources; i) A series of very detailed provisions deal with the protection of the marine
environment setting out general principles and rules about competence for law-making and
enforcement as well as on safeguards; j) Detailed provisions concerning marine scientific
research, based on the principle of consent of the coastal State, consent which should be the
norm for pure research and discretionary for resource-oriented research; k) The ocean bottom
beyond national jurisdiction is proclaimed to be the “Common Heritage of the Mankind” ( Khan,
2006 ).
3.4. Bilateral/Multilateral Treaties or Customary International Law
Besides the above mentioned two vital international instruments, the customary international law
and other bilateral or multilateral agreements are also the outstanding source of international law
of the sea. Regarding the customary international law, it is already noted that the 1958 and 1982
UN Conventions on the Law of the Sea have contributed a lot to the development of the
customary international laws. There may be other rules of customary international law that may
not precisely be reflected in any conventional text nor owe their origin to incorporation in such a
text. These as with all customary rules, bind States in the ordinary manner ( Dixon, 2005: p.
198 ).
3.5. International Tribunal for the Law of the Sea (ITLOS)
After the entry into force of the UN Convention on the Law of the Sea on 16 th November, 1994
strong efforts were made for the establishment of an International Tribunal for the Law of the
Sea (ITLOS). In August 1996, 21 Judges of the Tribunal were elected on the basis of “equitable
geographical distribution”. The ITLOS is an intergovernmental organization created by the
mandate of the Third UN Conference on the Law of the Sea. It was established by the UN
Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on 10 th December, 1982.
The ITLOS was ultimately established on 21 st October, 1996 of which jurisdiction is not
compulsory and is optional or based on the consent of the States. The Tribunal consists of 21
members, elected from among the highest reputation of fairness and integrity and a recognized
competence in the field of the law of the sea ( Kapoor, 2008: p. 153 ). The Tribunal is situated in
Germany, established a global framework for law over “all ocean space, its uses and resources”.
The Tribunal is open to all the state parties to the 1982 UN Convention on the Law of the Sea.
4. UNCLOS: Various Jurisdictions of the Maritime Zones
Under both the Geneva Convention on Territorial Sea, 1958 and the UN Convention on the Law
of the Sea, 1982 there are following seven maritime areas over which the States can exercise
their jurisdiction:
1) Base Line;
2) Inland waters;
3) Territorial Sea;
4) Contiguous Zone;
5) Exclusive Economic Zone (EEZ);
6) High Seas; and
7) Continental shelf.
4.1. The Base Line
The coastal curve, from which the maritime area of a State is measured, is called baseline or low
water line ( Rahman, 2003: p. 145 ). Baseline can be of two types: a) normal baseline and b)
straight baseline. Normal baseline is the low-water mark line along the coast. The low-water
mark after ebb tide on the coast is considered the normal baseline. It is a line hugging the coast.
Article 5 contains provisions as to normal baseline and reveals that, except where otherwise
provided in this Convention, the normal baseline for measuring the breadth of the territorial sea
is the low-water line along the coast as marked on large scale charts officially recognized by the
coastal State. On the other hand, straight baseline departs from the physical coastline due to
certain distinctive features of coasts of a State ( Khan, 2007: p. 227 ).
Article 12 (1) and (2) of the 1958 Convention contains provisions as to the delimitation of the
baseline and states that, 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 provisions of this paragraph shall not apply 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 with this provision. The line of delimitation between the territorial seas
of two States lying opposite to each other or adjacent to each other shall be marked on large-
scale charts officially recognized by the coastal States. The globally recognized principle as to
the delimitation of straight baseline is accepted in 1951 from the judgment of the famous Anglo-
Norwegian Fisheries Jurisdiction Case (1951) (England vs. Norway; ICJ).
In this case, the Norwegian government delimited its fisheries zone (territorial sea) by a decree
of 12th July, 1935. The area of this delimitation was about thousand miles of coastland of its
66.28.2 North Latitude. The Norwegian limit of four miles of territorial waters had been
established by a Royal decree in 1812 and the UK also admitted it. But it was not measured from
the low water mark at every point. Linking the out most point of land and sometimes drying
rocks above water only at high tide. The UK recognizing the Norwegian claim of four miles
challenged the validity of the baseline newly made and laid their grievance in the ICJ for
adjudication. The issue in this case before the Court was whether the base lines fixed by the said
decree in application of the Norwegian method were contradictory to the international law. The
Court decided by a vote 10 to 2 in favor of Norway approving the Norwegian practice of
drawing an outer line for its territorial sea that was based on straight base lines following the
general directions of the coast but not the indentation of that coast. According to the Court the
following reasons were considered to reach the decision:
1) In respect of delimitation of territorial waters with other States the ICJ observed that the act of
delimitation is always an international aspect, it cannot be dependent merely upon the will of
coastal State as expressed in the domestic law. 2) The coastline of Norway is not one of ordinary
nature; rather it is of a broken nature. The Court held that the method of baselines employed by
Norway was not contrary to the international law; inter alia, the special geographical facts
involved and the economic interests peculiar to the region.
The case is mainly based on the principle that, in some situations geographical circumstances
permit the drawing of straight baseline in the territorial sea. This method consists of selecting
appropriate points on the low water mark and drawing straight lines between them. The decision
of this case was subsequently accepted by the world community and was incorporated in the
1958 Geneva Convention on Territorial Sea and Contiguous Zone.
4.2. The Inland Waters
The internal waters which exist from the baseline to the landward side area of the coastal State
are called the inland waters. Article 8 (1) of the 1982 Convention states that, waters on the
landward side of the baseline of the territorial sea form part of the internal waters of the State.
Also article 5 (1) of the 1958 Convention provides that, waters on the landward side of the
baseline of the territorial sea form part of the internal waters of the State.
Civil and Criminal Jurisdiction of the Coastal State
The coastal State has its sovereign control and authority over its inland waters. The coastal state
also has the civil and criminal jurisdiction over its internal waters. If the law and order situations
in the inland waters of the coastal area are hampered, it shall definitely apply its criminal
jurisdiction. There is a renowned case in this regard e.g., the Fijens Case or Wildenhus Case
(1887) (Belgium vs. USA) which has already been discussed in the previous chapter. Another
leading case in this respect is Rex vs. Anderson (1868) .
In this case, James Anderson was an American national killed a foreign national in a British ship
and at the time of that killing the vessel was in the French territorial water. That is to say, in this
case the accused was an American citizen, vessel was of Britain and the place of committing
crime was France. When a case is filed before the British Court, Anderson claimed and argued
that the crime was occurred in the French territorial water and for this reason Britain has no
jurisdiction to try the accused in this. The main issue before the Court was whether the British
Court has actually jurisdiction to try Anderson. The Appellate Court decided that, the three
countries involved in this case are entitled to prosecute Anderson and so can Britain in order to
protect its vessel. The reason behind this judgment was that, Britain has jurisdiction to prosecute
Anderson because the crime was committed in the British ship, i.e. here the flag State is Britain.
Again, the USA has also Personal Jurisdiction to prosecute Anderson and France can also
prosecute as it has the Territorial Jurisdiction as the crime has hampered the security and peace
of France.
State vs. Yannopulous (1974) (Italy vs. Greece) is another relevant case here. In this case,
Yannopulous was a Greek national. He was one of the members of crew of a ship belong to
Cypress. The ship was anchored in an Italian port with huge quantity marijuana. Carrying
marijuana is itself an offence. Yannopulous was arrested and sent to the court alleging that his
carrying of the marijuana was a threat to the peace and security in the shore. The issue in this
case was whether Italy had the jurisdiction to try Yannopulous for the alleged offence? The
Italian Court acquitted Yannopulous with honor and set him free. In this case, the main reasoning
before the court was as follows:
1) Under the customary international law the coastal state has both the civil and criminal
jurisdiction in its internal matters. But if the offence is committed on board of the vessel, the flag
state has the jurisdiction, which is concurrent to that of the state whose national was the offender.
2) There is an exception to this general rule, which provides that if the offence disturbed the
peace, security and good order of the shore, the coastal state can try such offence on the ground
of public interest. 3) There is no evidence in this case that the act of Yannopulous disturbed the
peace, security and good order of the port. Though Yannopulous was found and arrested with
drugs, his council argued that he only possessed it and had no intention or motive to sell. It
would be determined unilaterally by the coastal state whether an act of an alien affects the peace,
security and good order of that port or that country.
4.3. The Territorial Sea
The doctrine of territorial sea has traditionally been regarded as founded upon the principle laid
down by the Dutch Jurist Bynkershoek in his de dominion maris dissertation in 1702 that a
state’s sovereignty extended as far out to sea as a common shot would reach and the three-mile
limit has traditionally been represented as simply rough equivalent of the maximum range of a
canon shot in the 18th century ( Sircar, 1997: p. 56 ). Actually the territorial sea is the closest
maritime area adjacent to the land territory of states ( Khan, 2007: p. 228 ). The territorial sea
forms an undeniable part of the land territory to which it is bound, so that a cession of land will
automatically include any band of territorial waters ( Brown, 1994 ).
4.3.1. Legal Position of the Coastal State
Ordinarily the states claimed only three miles of territorial sea till the 1960s and there was no
uniformity in the national jurisdictions of the territorial sea. The 1982 Convention has put to rest
all varying width of the territorial sea. According to article 1 of the 1958 Convention, the
sovereignty of a state extends beyond its land territory and internal waters, to a belt of sea
adjacent to its coast. As per article 2(1) of the 1982 UN Convention, 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. This
sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil
( Article 2 (2), 1982 ). The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law ( Article 2 (3), 1982 ). According to article 3
of the 1982 Convention, 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. The width of the territorial sea is defined from the low water mark around
the coasts of the state ( Reisman & Westerman, 1992 ). In the area of territorial sea, the coastal
state shall have its exclusive jurisdiction. But the other states shall enjoy an exceptional right
named as “right of innocent passage”.
4.3.2. Right of Innocent Passage: Explanation of the Idea
Article 17 of the 1982 Convention deals with the right of innocent passage of states and provides
that, subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the
right of innocent passage through the territorial sea. The 1982 Convention also contains
provisions regarding the meaning of ‘passage’ which in its article 18 (1) states that, passage
means navigation through the territorial sea for the purpose of: a) traversing that sea without
entering internal waters or calling at a roadstead or port facility outside internal waters; or b)
proceeding to or from internal waters or a call at such roadstead or port facility. Passage shall be
continuous and expeditious. Passage includes stopping and anchoring, but only in so far as the
same are incidental to ordinary navigation or are rendered necessary by force majeure or
distressor for the purpose of rendering assistance to persons, ships or aircraft in danger or distress
(Article 18 (2)). Conversely, article 19 (1) provides the meaning of ‘innocent passage’ and
accordingly states that, passage is innocent so long as it is not prejudicial to the peace, good
order or security of the coastal State. Such passage shall take place in conformity with this
Convention and with other rules of international law. The right to innocent passage shall no more
remain innocent if the peace and security of the territorial sea of the coastal state is hampered by
any act of the foreign vessel ( Article 19 (2) (a) - (i), 1982).
4.3.3. Obligations of the Coastal State
The coastal state has some obligations regarding the innocent passage under the 1982
Convention. For instance, the coastal state shall enact necessary legislations regarding the right
to innocent passage ( Article 21 (1) - (4), 1982 ). That is to say, the obligation to ensure the
security of innocent passage lies upon the coastal state (Article 22 (1)). Again, article 25 deals
with the rights of protection of the coastal State which states in its sub article (1) that, the coastal
State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
The coastal State may, without discrimination in form or in fact among foreign ships, suspend
temporarily in specified areas of its territorial sea, the innocent passage of foreign ships if such
suspension is essential for the protection of its security, including weapons exercises. Such
suspension shall take effect only after having been duly published (Article 25 (3)).
4.3.4. Coastal States’ Criminal Jurisdiction: Vessels in Innocent Passage
Article 27 deals with the provisions regarding the criminal jurisdiction on board a foreign ship
and provides in its sub-article (1) that, the criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial sea to arrest any person or to
conduct any investigation in connection with any crime committed onboard the ship during its
passage, save only in the following cases: a) If the consequences of the crime extend to the
coastal State; b) If the crime is of a kind to disturb the peace of the country or the good order of
the territorial sea; 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 d) If such measures are
necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The
above provisions do not affect the right of the coastal State to take any steps authorized by its
laws for the purpose of an arrest on board a foreign ship passing through the territorial sea after
leaving internal waters ( Article 27 (2), 1982 ). In considering whether or in what manner an
arrest should be made, the local authorities shall have due regard to the interests of navigation
(Article 27 (4)).
4.3.5. Civil Jurisdiction of the of the Coastal State over the Vessels in Innocent Passage
Article 28 of the 1982 Convention deals with the civil jurisdiction of the coastal state in relation
to foreign ships which states as follows:
1) The coastal State should not stop or divert a foreign ship passing through the territorial sea for
the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2) The
coastal State may not levy execution against or arrest the ship for the purpose of any 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. 3)
Para (2) is without prejudice to the right of the coastal State, in accordance with its laws, to levy
execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the
territorial sea, or passing through the territorial sea after leaving internal waters.
4.3.6. Provisions Regarding War Ships and Other Non-Trading Ships
Article 30 deals with the provisions regarding non-compliance by warships with the laws and
regulations of the coastal State and reveals that, if any warship does not comply with the laws
and regulations of the coastal State concerning passage through the territorial sea and disregards
any request for compliance therewith which is made to it, the coastal State may require it to leave
the territorial sea immediately. According to article 31, the flag State shall bear global obligation
for any loss or damage to the coastal State resulting from the non-compliance by a warship or
other government ship operated for non-commercial purposes with the laws and regulations of
the coastal State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law. The responsibility to keep the passage innocent is
always of the coastal state.
4.4. The Contiguous Zone
The concept of contiguous zone ( Lowe, 1981: p. 109 ) was virtually formulated as an
authoritative and consistent doctrine in the 1930s by the French writer Gidel , and it appeared in
the 1958 Convention on the Territorial Sea. Contiguous zone is that part of the sea which is
beyond and adjacent to the territorial sea of the coastal state. It may not extend beyond 24 miles
from which the width of the territorial sea is measured ( Kapoor, 2008: p. 136 ). The use of
contiguous zones gives the coastal state an additional area of jurisdiction for limited purposes
( Dixon, 2005: p. 202 ). Article 33 of the 1982 Convention deals with contiguous zone and
reveals in its sub-article (1) that, in a zone contiguous to its territorial sea, described as the
contiguous zone, the coastal State may exercise the control necessary to: a) prevent infringement
of its customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea; b) punish infringement of the above laws and regulations committed within its
territory or territorial sea. The contiguous zone may not extend beyond 24 nautical miles from
the baselines from which the breadth of the territorial sea is measured (Article 33 (2)). Again,
article 24 (1) of the 1958 Convention also states that, in a zone of the high seas contiguous to its
territorial sea, the coastal State may 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.
Jurisdiction of the Coastal State in the Contiguous Zone
If the coastal state notices that another state or person is violating its rights, or fleeing after
committing any crime, or hampering the law and order situations in the contiguous zone area of
the coastal state, then it has jurisdiction to prosecute and punish the perpetrator state. The
relevant case in this respect is the Re Martinez Case (1959) . The fact of the case was as follows:
Under Article 2 of the Italian law of the sea (Maritime Code), from the baseline to 6 nautical
miles area is Custom Zone and the next 6 nautical miles area is Vigilance Zone. Martinez
involved himself in smuggling in the 9 kilometers area far from the base line of Italy. The Italian
authority attempted to arrest him and fired him but he then escaped in 54 nautical miles in the
sea. But ultimately he was captured by the Italian authority and his trial was commenced.
Martinez argued that he has committed smuggling outside the territorial sea of Italy and he was
arrested unlawfully. For this reason, Italy has no jurisdiction to try him. The prime issue in this
case was, whether Italy has any jurisdiction to prosecute Martinez? The Appellate Court held
that, the Italian Court has the jurisdiction to prosecute Martinez. The Court has the reasoning in
this case that; the Vigilance Zone was made by Italy in order to maintain the security and good
order in the coastal area and mainly to prevent smuggling in the coastal area.
4.5. Exclusive Economic Zone (EEZ) or Patrimonial Sea
Before discussing about the Exclusive Economic Zone (EEZ) or Patrimonial Sea, it is very much
pertinent to mention an important case on this topic which will properly clarify the matter. Here
the case is the Fisheries Jurisdiction Case (USA and Germany vs. Iceland; ICJ, 1974). In this
case, in 1958 following the Geneva Conference, Iceland declared a 12 nautical miles exclusive
fisheries zone and the UK accepted it in 1961. On 1 st September, 1972 Iceland announced 50
miles of its water territory for the conservation of economic zone measured from straight
baseline close to all fisheries vessels. On 14 th April, 1972 the UK unilaterally inaugurated
proceeding before the ICJ claiming that Iceland was not entitled to the unilateral extension of the
zone. The UK further said that the conservation of fish stock of Iceland should be subject to
bilateral arrangements between the two States. At that time, the court received another issue
concerning the similar German-Iceland dispute. The Court joined them together.
In this case, the core issue before the Court was, whether Iceland was entitled to the unilateral
extension of its economic zone 50 nautical miles beyond its territorial water? The court by 10 to
4 votes held that Iceland was not entitled to declare unilaterally an exclusive fisheries zone of 50
nautical miles beyond its territorial water. The governments of Iceland, the UK and West
Germany were under an obligation to negotiate an equitable solution among them. The decision
further said that the preferential rights of Iceland, the UK and West Germany should be taken
into account in the negotiation. The reasoning in this case was that, the ICJ first established the
principle of “preferential rights” over the particular regime of the sea. The Court held that, 90
percent foreign currency of Iceland is earned from fishing. In fact, the total economy of Iceland
depends on the fishing. For this reason Iceland was given the preferential right over that
particular zone. The Court found that the unilateral declaration of 50 nautical miles Exclusive
Economic Zone (EEZ) neither legal nor illegal under the principle of international law. When the
hearing of the case was going on before the ICJ, then the argument about the declaration of EEZ
over the contiguous zone became the top issue of discussion regarding the delimitation of the
international maritime area. For that reason many states claimed their right to fishing over 200
nautical miles towards the high seas. Finally this matter was emphasized and incorporated in the
1982 Convention and it was enacted that the EEZ shall extend to 200 nautical miles from the
baseline of the coastal state, which was the reflection of the “creeping annexation rule” in
international law. In Bangladesh context, the notification of 16 th April, 1974 declared that the
EEZ of Bangladesh would extend to 200 nautical miles from the base line ( Rashid, 2004 ).
4.5.1. Clarification of the Concept of EEZ or Patrimonial Sea
The concept of Exclusive Economic Zone (EEZ) or Patrimonial Sea was for the first time
advocated by Kenya in the Asian-African Legal Consultative Committee at its Colombo Session
held January, 1971 ( Kapoor, 2008: p. 141 ). Article 55 of the 1982 convention provides that, the
EEZ is an area beyond and adjacent to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and jurisdiction of the coastal State and the rights
and freedoms of other States are governed by the relevant provisions of this Convention. The
EEZ is a belt of sea, adjacent to the coast, extending up to 200 miles from the baselines of the
territorial sea. Within this area, the coastal state is given “sovereign rights” for the purpose of
exploring and exploiting the living and non-living natural resources of the sea ( Dixon, 2005: p.
203 ). Article 57 deals with the breadth of the exclusive economic zone and states that the
exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured.
4.5.2. Coastal State and Non-Coastal State: Rights and Obligations
Article 56 contains provisions regarding the rights, jurisdiction and duties of the coastal State in
the EEZ. Article 56 (1) states that, in the EEZ, the coastal State has: a) Sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural resources, whether
living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and
with regard to other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds; b) Jurisdiction as provided for in
the relevant provisions of this Convention with regard to: i) the establishment and use of
artificial islands, installations and structures; ii) marine scientific research; iii) the protection and
preservation of the marine environment. Again, article 58 of the 1982 Convention deals with the
rights and duties of other States in the EEZ which states that, in the exclusive economic zone, all
States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this
Convention, the freedoms referred to in article 87 of navigation and over flight and of the laying
of submarine cables and pipelines, and other internationally lawful uses of the sea related to
these freedoms, e.g., those associated with the operation of ships, aircraft and submarine cables
and pipelines, and compatible with the other provisions of this Convention ( Article 58 (1),
1982 ).
4.6. The High Seas
The main stream of Grotian theory was that the high sea is res communis as it is physically
impossible to take possession of it. Scelle has argued that the character of high sea can be
compared to public parks or beaches or any open public place available to the public for general
use under the domestic law ( Khan, 2007: p. 241 ). Fenwick (1971: p. 496) opines that high sea
or open sea is the sea outside the territorial waters. The high seas were defined in article 1 of the
1958 Geneva Convention on the High Seas as all parts of the sea that were not included in the
territorial sea or in the internal waters of a state. In the view of recent developments, this
definition has become very absolute and inadequate. This provision mainly replicates the
customary international law, though in consequence of the developments the definition in article
86 of the 1982 Convention includes: “...all parts of the sea that are not included in the EEZ, in
the territorial sea or internal waters of a State, or in the archipelagic waters of an archipelagic
State...”. Article 87 of the 1982 Convention provides that high seas are open to all states and that
the freedom of the high seas is exercised under the conditions laid down in the Convention and
by other rules of international law.
4.6.1. Freedoms of the High Sea: Explanation of the Idea
In opposition to the principle of maritime sovereignty, the principle of the “freedom of the high
seas” began to develop, as Hall (1924: p. 189) has pointed out, in accordance with the mutual
and obvious interests of the maritime nations ( Starke, 1994: p. 243 ). Article 2 of the Geneva
Convention on the High Seas, 1958 provides that the freedom of the high seas comprises inter
alia, both for the coastal and non-coastal states. There are four freedoms as has been mentioned
in this Convention: 1) freedom of navigation, 2) freedom of fishing, 3) freedom to lay submarine
cables and pipelines, and 4) freedom to fly over the high seas. These freedoms and others which
are recognized by the general principles of international law shall be exercised by all states with
regard to the interests of other states. In article 87 of the 1982 Convention two more freedoms
were inserted. The freedoms of high seas expressly enumerated in article 87 (1) of the
Convention are following: a) freedom of navigation; b) freedom of over flight; c) freedom to lay
submarine cables and pipelines; d) freedom to construct artificial islands and other installations
permitted under international law; e) freedom of fishing; f) freedom of scientific research. Article
87 (2) of the Convention states that, these freedoms shall be exercised by all States with due
regard for the interests of other States in their exercise of the freedom of the high seas, and also
with due regard for the rights under this Convention with respect to activities in the area. It is
further provided that, the high seas shall be reserved for peaceful purposes ( Article 88, 1982 ).
No State may lawfully purport to subject any part of the high seas to its sovereignty ( Article 89,
1982 ). Grotius, the father of international law was one of the first strenuously to attach the
extensive claims to freedoms and sovereignty. His objections, as reflected in his famous book
Mare Liberum, were based predominantly upon two grounds: 1) No ocean can be the property of
a nation as it is impossible for any nation effectively to take it into possession by occupation; and
2) Nature does not give a right to anybody to appropriate things that may be used by everybody
and are exhaustible. In other words, open sea is a res gentium or res extra commercium.
4.6.2. Freedom of the Navigation in the High Sea: General Rules
The freedom of navigation is a traditional and well established feature of the doctrine of the high
seas, as is the freedom of fishing. Article 90 of the 1982 Convention contains provisions
regarding right of navigation which reveals that, every State, whether coastal or land-locked, has
the right to sail ships flying its flag on the high seas. Every State shall fix the conditions for the
grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly
its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must be
the existence of a genuine link between the State and the ship ( Article 91 (1), 1982 ).
Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided
for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on
the high seas. A ship may not change its flag during a voyage or while in a port of call, save in
the case of a real transfer of ownership or change of registry (Article 92 (1)). A ship which sails
under the flags of two or more States, using them according to convenience, may not claim any
of the nationalities in question with respect to any other State, and may be assimilated to a ship
without nationality ( Article 92 (2), 1982 ). The preceding articles do not prejudice the question
of ships employed on the official service of the UN, its specialized agencies or the International
Atomic Energy Agency (IAEA), flying the flag of the organization ( Article 93, 1982 ). Every
State shall effectively exercise its jurisdiction and control in administrative, technical and social
matters over ships flying its flag (Article 94 (1)).
4.6.3. Right to Hot Pursuit: Explanation of the Idea
An exception to the exclusive jurisdiction of the flag state over a vessel in the high seas is the
right of hot pursuit ( Kapoor, 2008: p. 145 ). The right of hot pursuit of a foreign vessel is a
principle designed to ensure that a vessel which has infringed the rules of a coastal state cannot
escape punishment by fleeing to the high seas. In reality it means that in certain defined
circumstances a coastal state may extend its jurisdiction onto the high seas in order to pursue and
seize a ship which is suspected of infringing its laws. The right, which has been developing in
one form or another since the 19th century, was comprehensively elaborated in article 111 of the
1982 Convention, building upon article 23 of the 1958 High Seas Convention ( Shaw, 1997: p.
425 ). Hot pursuit of a foreign vessel may be undertaken if there is good reason to believe that
the vessel has violated the laws and regulations of the coastal state, but it must be commenced
when the vessel or one of its boats is within the internal waters, archipelagic waters, the
territorial sea or the contiguous zone, and may only be continued outside the territorial sea or
contiguous zone if the pursuit has not been interrupted.
Pursuit is permissible only by the warships or military aircraft or other vessels or aircraft clearly
marked and identifiable as being on government service and authorized to that effect ( Starke,
1994: p. 279 ). Right of hot pursuit only begins when the pursuing ship has satisfied itself that
the ship pursued or one of its boats is within the limits of the territorial sea or as the case may be
in the contiguous zone, or EEZ or on the continental shelf ( Article 111 (1), 1982 ). Article 23 of
the 1958 Convention states that, if any warship does not comply with the regulations of the
coastal State concerning passage through the territorial sea and disregards any request for
compliance which is made to it, the coastal State may require the warship to leave the territorial
sea. The right to hot pursuit ceases as soon as the vessel pursued has entered the territorial waters
of its own or of a third state ( Article 111 (3), 1982 ).
There is also huge debate in international law as to how far shall the coastal state use this right to
hot pursuit. There is a famous case named I am Alone Case (1935) (Canada vs. USA) in this
regard. In this case, on 20 th March, 1929 the “I am Alone”, a rum runner of Canadian registry,
was seen by the coast guard vessel Wolcott about 10.5 miles off the Louisiana coast, but within
one hour sailing distance from the coast. The “I am Alone” ship refused to stop sailing when
ordered by the Wolcott. Pursuit was taken up by the Dexter and Wolcott caught up with the “I
am Alone” more than 200 miles off the coast of USA. After that when “I am Alone” refused to
stop sailing the Dexter opened fire. Consequently the “I am Alone” was sunk. All but one person
was rescued. In order to settle the dispute it was put before the two Commissioners appointed
under the 1929 Convention. In this case, the core issues before the court was: 1) whether the
pursing of US vessel Wolcott after the “I am Alone” was a hot pursuit? 2) Whether the US
pursuit was reasonable or proportionate to the threat shown by the “I am Alone”? 3) If it would
not be hot pursuit, whether US will be liable to pay compensation? The Commissioners held that
the pursuing by the US vessel was not a hot pursuit. The opening fire by Wolcott was not
justifiable. Thus the USA was ordered to pay compensation to Canada.
4.7. Continental Shelf: Explanation of the Idea
The term “continental shelf” is usually meant that part of the continental border which is
between the shelf break and shoreline or, where there is no clear slope between the shoreline and
the point where the depth of the superjacent water is around between 100 to 200 meters ( UN,
2012 ). Continental shelf is a geological expression referring to the ledges that project from the
continental land mass into the seas and which are covered with only a relatively shallow layer of
water and which eventually fall away into the ocean depths. It is an underwater landmass that
extends from a continent, resulting in an area of relatively shallow water known as a shelf sea
and a region adjoining the coastline of a continent, where the ocean is no more than a few
hundred feet deep.
The legal concept of continental shelf came into attention since Truman Proclamation of 1945
wherein it was declared that the USA considered the resources of the shelf contiguous to the
USA as appurtenant to the US and subject to its jurisdiction and control ( Kapoor, 2008: p. 139 ).
Article 76 (1) of the 1982 UN Convention defines “continental shelf” as follows:
“The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas
that extend beyond its territorial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance” ( Article 76 (1), 1982 ).
Where the continental margin extends beyond 200 miles, the Convention provides that the
continental shelf should not extend more than 350 nautical miles from the baselines or 100
nautical miles from the 2500 meter depth. Again, the Convention on the Continental Shelf (1958)
defined the “continental shelf” in the following terms:
“The continental shelf is (a) the seabed and sub-soil of the submarine areas adjacent to the coast
but outside the territorial sea to a depth of 200 meters or ‘beyond that limit to where the depth of
the superjacent waters admits of the exploration of the natural resources of the said areas’; (b) to
the seabed and sub-soil of similar submarine areas adjacent to the coast of island” ( Article 1,
1958 ).
Rights of the Coastal State over the Continental Shelf
Article 77 of the 1982 Convention deals with the rights of the coastal State over the continental
shelf and states: 1) The coastal State exercises over the continental shelf sovereign rights for the
purpose of exploring it and exploiting its natural resources. 2) The rights are exclusive in the
sense that if the coastal State does not explore the continental shelf or exploit its natural
resources, no one may undertake these activities without the express consent of the coastal State.
3) The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation. 4) The natural resources consist of the
mineral and other non-living resources of the seabed and subsoil together with living organisms
belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either
are immobile on or under the seabed or are unable to move except in constant physical contact
with the seabed or the subsoil.
The Convention expressly states that the rights of the coastal state do not affect the status of the
superjacent waters as high seas, or that of the airspace above the waters (Article 78 of UN
Convention, 1982 and article 3 of UN Convention, 1958). The question of the delimitation of the
continental shelf has occasioned considerable debate and practice from the 1958 and 1982
Conventions to case laws and a variety of treaties ( Shaw, 1997: p. 436 ). Most difficulties in this
area are indeed resolved by agreement and the guiding principle of international law now is that
disputes over continental shelf boundaries are to be settled by agreement in accordance with
equitable principles. As regards the delimitation of the continental shelf between States with
opposite or adjacent coasts, the Convention provides that it should be effected by agreement on
the basis of international law; if no agreement can be reached within a reasonable period of time,
the concerned States should resort to the procedures of settlement of disputes provided for in the
Convention. From the various disputes among the states regarding the delimitation of the
continental shelf, two significant principles have evolved in international law: a) Principle of
Equidistance; and b) Principle of equity. Article 6 of the 1958 convention declared that in the
absence of agreement and unless another boundary line was justified by special circumstances,
the boundary should be determined “by application of the principle of equidistance from the
nearest points of the baselines from which the width of the territorial sea of each state is
measured.” These two major principles are discussed below in the light of various cases of the
international law of the sea.
In the North Sea Continental Shelf Case (1969) (Federal Republic of Germany vs. Denmark and
Netherlands; ICJ), there were two bilateral agreements between the Federal Republic of
Germany and the Netherlands and between the Federal Republic of Germany and Denmark. The
two agreements were signed in 1964 and 1965 respectively and did no more that drawing a
diving line for a short distance from the coastline beginning at the point at which the land
boundary of the two States concerned was located. Further agreement for delimitation of their
portion in the North Sea Continental Shelf had proved impossible and the parties of the said
agreements put the dispute separately to the ICJ. Issues of this case were: 1) Which principle of
international law shall be applied by the parties in the delimitation of water boundary? 2)
Whether the provisions of Article 6 of the Geneva Convention on the Continental Shelf, 1958
(established on the principle of equidistance) shall be applicable on a State like Germany? The
principle of equidistance is not applicable on the parties. The Court decided this case on the basis
of equitable principle and the judgment goes in favor of Denmark and Netherlands. In this case
the ICJ ruled against the existence of a customary rule which the Court in an earlier decision
affirmed that the division of a common continental shelf of an adjacent country must be divided
according to the equidistance principle ( Khan, 2007: p. 471 ). The reasoning in this was that, as
Germany did not ratify the Geneva Convention on the Continental Shelf of 1958, it is not bound
to comply with the provisions of the convention. But after considering the matter, the court
invented the new “principle of equity” in this case.
Another important case is the Anglo-French Continental Shelf Case (1978) (UK vs. France; ICJ).
In this case, after the long attempt of about ten years (from 1964-75), both the UK and France
have failed to determine the area of their continental shelf. In 1975 a bilateral treaty was signed
between them that, this matter shall be decided in the ICJ. Thus the ICJ has determined the area
in Geneva in June, 1977. The main issue in the case was―on the basis of which principle or law
the area of the continental shelf of both the States shall be determined? The ICJ delivered its
decision on the basis of the principle of equity. The reasoning before the Court was that, it is not
mandatory that the article 6 of the Geneva Convention on the Continental Shelf, 1958 (the
principle of equidistance) must be applied in this case and for this reason a new principle, i.e.,
the principle of equity is applied here.
Again, in the Tunisia-Libya Continental Shelf Case (1982) (ICJ), a dispute arose between
Tunisia and Libya in respect of delimitation of the respective area of continental shelf
appertaining to each on the basis of the geology, physiographic and bathymetry. On 10 th June,
1977 both Tunisia and Libya entered into a treaty to go before the ICJ for the delimitation of the
respective area of continental shelf. The ICJ was requested to deliver a judgment and it did so.
But Tunisia filed a revision against the judgment of ICJ and the Revision Court upheld the
previous judgment. Whether the Geneva Convention on the Continental Shelf, 1958 or the
customary international law shall be applicable in deciding the case was the main issue in this
case, as none of the States did ratify the Convention of 1958. The judgment of this case was
delivered on the basis of the equitable principle. By a majority of ten to four votes the Court held
that the delimitation method to be applied according to the principle of equity taking into account
of all the relevant circumstances.
The Libya-Malta Continental Shelf Case (1985) is another significant case in this regard where a
dispute arose between Libya and Malta in respect of delimitation of the areas of the continental
shelf between Malta and Libya. Both the States were the signatory of the 1982 UN Convention
on the Law of the Sea. But Libya was not a party to the 1958 Convention though Malta was. The
main issue before the court was, whether article 6 (2) of the1958 Convention or the customary
international law shall be applicable in deciding the case? Both of the States were signatory of
the UN Convention on the Law of the Sea, 1982. By a majority of 14 to 3 votes the court held
that the delimitation is to be applied in accordance with the principles of equidistance. In this
case the ICJ followed the principle of equidistance for delimitation. Both the principles of equity
and equidistance are applicable but it depends upon the peculiar geographical situation of the
coastal state in concern. The Court said in this case an equitable result may be achievable by
drawing a line of which every point is equidistant from the low water mark of the coast.
5. Concluding Remarks
It is apparent from the above scrutiny that the law of the sea is a burgeoning area of international
law. The 1958 and 1982 Conventions on the Law of the Sea did much to create systematic and
humdrum rules for the management and use of this common resource and many of the rules
contained in these Conventions have now passed into customary international law. The great
achievement was the conclusion of the 1982 UN Convention on the Law of the Sea which deals
with about all the vital issues of the law of the sea and it does so in a manner that has
commanded a significant amount of support. Also many of its provisions either reveal the
existing customary international law or will crystallize into new law in due course.

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