Territory: Law of the Sea
The importance of the seas flows from two factors: first, they
are a medium of communication, and second, they contain vast
natural resources. In the 17th century, the Portuguese
proclaimed vast areas of sea as belonging to itself. But it was
Grotius who elaborated the doctrine of the open seas which
considers the high seas as res communis accessible to all. The
doctrine, however, recognized as permissible the delineation of
a maritime belt by littoral states as an indivisible part of its
domain. This belt is the territorial sea.
Much of the history of the law of the sea has centered around
the extent of the territorial sea. But over the years, other
jurisdictional issues have occurred and today the prevailing law
on maritime domain is the Convention on the Law of the Sea of
1982 (LOS). Many of the provisions of the 1982 Law of the Sea
are a repetition of earlier convention law or a codification of
customary law.
The basic statement of the extent of a state’s sovereignty over
waters is set down in Article 2 of the 1982 Law of the Sea:
Article 2. Legal status of the territorial sea, of the air space over
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 air space over 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.
Territorial sea
The territorial sea is a belt of sea outwards from the baseline
and up to 12 nautical miles beyond. The width of this territorial
belt of water has been the subject of much disagreement. The
original rule was the “cannon shot” rule, that is, the width of
water was measured in terms of the range of shore-based
artillery. Later this became the three-mile rule. The three-mile
rule has now been discarded in favor of the twelve-mile rule now
found in Article 3 of the 1982 LOS.
Where, however, the application of the twelve-mile rule to
neighboring littoral states would result in overlapping, the rule
now established is that the dividing line is a median line
equidistant from the opposite baselines. But the equidistance
rule does not apply where historic title or other special
circumstances require a different measurement. Article 15, 1982
LOS.
Baselines: “normal" or “straight”
To understand the extent of the territorial sea one must begin
with an understanding of baselines. The baseline is “the low-
water line along the coast as marked on large scale charts
officially recognized by the coastal State.” (Section 5, 1982 LOS)
The width of the territorial sea is measured from the baseline.
There are two ways of drawing the baseline. The “normal”
baseline is one drawn following “the low-water line along the
coast as marked on large-scale charts officially recognized by
the coastal State.”' This line follows the curvatures of the coast
and therefore would normally not consist of straight lines.
There is no fixed norm for determining the “low water mark” but
the Anglo-Norwegian Fisheries Case (U.K. v. Norway ICJ 1951)
has suggested 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. This criterion
is the most favorable to the coastal State and clearly shows the
character of territorial waters as appurtenant to the land
territory.”
Archipelagic states, however, instead of drawing “normal
baselines,” have drawn “straight baselines.” Instead of following
the curvatures of the coast, straight lines are drawn connecting
selected points on the coast without appreciable departure from
the general shape of the coast. This method of drawing lines
was first upheld in the Anglo-Norwegian Fisheries Case which
upheld the straight baseline unilaterally adopted by Norway.
Likewise, R.A. No. 3046 and R.A. No. 5446 have drawn “straight
baselines” around the Philippines.
The decision in the Fisheries Case upholding the “straight
baseline method” eventually became part of convention law.
Article 7(1) of the Convention on the Law of the Sea says: “In
localities where the coastline is deeply indented and cut into, or
if there is a fringe of islands along the coast in its immediate
vicinity, the method of straight baselines joining appropriate
points may be employed in drawing the baseline from which the
breadth of the territorial sea is measured.”
Article 47 of the Convention on the Law of the Sea allows the
use of the “straight baseline method” for archipelagic states with
certain limitations. The article in full reads:
1. An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided
that within such baselines are included the main islands
and an area in which the ratio of the area of the water
to the area of the land, including atolls, is between 1
to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100
nautical miles, except that up to 3 percent of the total
number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125
nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of
the archipelago.
4. Such 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 where a low-tide elevation is situated
wholly or partially at a distance not exceeding the
breadth of the territorial sea of another State.
5. The system of such baselines shall not be applied to an
archipelagic State in such a manner as to cut-off from
the high seas or the exclusive economic zone the
territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic
State lies between two parts of an immediately
adjacent neighboring State, existing rights and all other
legitimate interests which the latter State has
traditionally exercised in such waters and all rights
stipulated by agreement between those States shall
continue and be respected.
 7. For the purpose of computing the ratio of water to land
under paragraph 1, land areas may include waters lying
within the hinging reefs of islands and atolls, including
that part of a steep sided oceanic plateau which is
enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the
plateau.
8. The baselines drawn in accordance with this article
shall be shown on charts of a scale or scales adequate
for ascertaining their position. Alternatively, lists of
geographical co-ordinates of points, specifying the
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such
charts or lists of geographical co-ordinates and shall
deposit a copy of each such chart or list with the
Secretary-General of the United Nations.
Sovereignty over Territorial Sea
The sovereignty of the coastal state over its territorial sea and
the airspace above it as well as the seabed under is the same
as its sovereignty over its land territory. (Article 2, LOS)
However, the sea is subject to the right of innocent passage by
other states. The rule on innocent passage applies to ships and
aircraft. Submarines, moreover, must surface.
Innocent passage is passage that is not prejudicial to the peace,
good order or security of the coastal state. Article 19(2)
enumerates acts that are not considered innocent passage thus:
2. Passage of a foreign ship shall be considered to be prejudicial
to the peace, good order or security of the coastal State if in the
territorial sea it engages in any of the following activities:
(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;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice
of the defense or security of the coastal State;
(d) any act of propaganda aimed at affecting the defense
or security of the coastal State;
(e) the launching, landing or taking on board of any
aircraft;
(f) the launching, landing or taking on board of any
military device;
(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;
(h) any act of willful and serious pollution contrary to this
Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of
communication or any other facilities or installations of
the coastal State;
(l) any other activity not having a direct bearing on
passage.
Coastal states have the unilateral right to verify the innocent
character of passage, and it may take the necessary steps to
prevent passage that it determines to be not innocent.
The rule on innocent passage is also applicable to straits. In the
Corfu Channel Case, the Court said:
It is, in the opinion of the Court, generally recognized and in
accordance with international custom that States in time of
peace
have a right to send their warships through straits used for inter-
national navigation between two parts of the high seas without
the previous authorization of a coastal State, provided that the
passage is innocent. Unless otherwise prescribed in an
international convention, there is no right for a coastal State to
prohibit such passage through straits in time of peace.
This rule is now found in Article 45 of the 1982 Convention.
Internal waters
Internal waters are all waters (part of the sea, rivers, lakes, etc.)
landwards from the baseline of the territory. Sovereignty over
these waters is the same in extent as sovereignty over land, and
it is not subject to the right of innocent passage. However, in
Saudi Arabia v. Aramco (Arbitration 1963), the arbitrator said
that according to international law — ports of every state must
be open to foreign vessels and can only be closed when vital
interests of the state so requires. But according to the Nicaragua
v. US.,6 a coastal state may regulate access to its ports.
Archipelagic waters
Article 8(2) of the Convention which says: “Where the
establishment of a straight baseline in accordance with the
method set forth in Article 7 has the effect of enclosing as
internal waters areas which had not previously been considered
as such, a right of innocent passage as provided in this
Convention shall exist in those waters.” Article 53 of the
Convention refers to this type of internal water as “archipelagic
waters” and says that “[a]n archipelagic State may designate
sea lanes and air routes thereabove, suitable for the continuous
and expeditious passage of foreign ships and aircraft through or
over its archipelagic waters and the adjacent territorial sea.”
This provision was seen as posing a problem for Philippine law
because Article I of the Philippine Constitution, which took effect
in 1973 prior to the 1982 Convention on the Law of the Sea,
considers all waters connecting the islands as internal waters.
The Philippine government was clearly aware of these possible
conflicts. Hence, upon its ratification of the Convention on the
Law of the Sea on August 5, 1984, it added the following
declaration:
1. The signing of the Convention by the Government of
the Republic of the Philippines shall not in any manner
impair or prejudice the sovereign rights of the Republic
of the Philippines under and arising from the
Constitution of the Philippines;
2. Such signing shall not in any manner affect the
sovereign rights of the Republic of the Philippines as
successor to the United States of America, under and
arising out of the Treaty of Paris between Spain and
the United States of America of December 10, 1988,
and the Treaty of Washington between the United
States of America and Great Britain of January 2,1930;
3. Such signing shall not diminish or in any manner affect
the rights and obligations of the Contracting Parties
under the Mutual Defense Treaty between the
Philippines and the United States of America of August
30,1951, and its related interpretative instruments; nor
those under any pertinent bilateral or multilateral
treaty or agreement to which the Philippines is a party;
 4. The provisions of the Convention on archipelagic
passage through sea lanes do not nullify or impair the
sovereignty of the Philippines as an archipelagic State
over the sea lanes and do not deprive it of authority to
enact legislation to protect its sovereignty,
independence, and security;
5. The concept of archipelagic waters is similar to the
concept of internal waters under the Constitution of the
Philippines, and removes straits connecting these
waters with the economic zone or high sea from the
rights of foreign vessels to transit passage for
international navigation;
However, concern about this problem may not be necessary
because Article 8(2) itself says that the new rule applies only to
“areas which had not previously been considered as ‘internal
waters.”’ The 1973 Constitution pre-dates the 1982 Convention.
Bays
The waters of a bay are considered internal waters of a coastal
state. The rule on bays is found in Article 10 of the 1982 LOS:
1. For the purposes of this Convention, a bay is a well-
marked indentation whose penetration is in such
proportion to the width of its mouth as to contain land-
locked waters and constitute more than a mere
curvature of the coast. An indentation shall not,
however, be regarded as a bay unless its area is as
large as, or larger than, that of the semi-circle whose
diameter is a line drawn across the mouth of that
indentation.
2. For the purpose of measurement, the area of an
indentation is that lying between the low-water mark
around the shore of the indentation and a line joining
the low-water mark of its natural entrance points.
Where, because of the presence of islands, an
indentation has more than one mouth, the semi-circle
shall be drawn on a line as long as the sum total of the
lengths of the lines across the different mouths. Islands
within an indentation shall be included as if they were
part of the water area of the indentation.
3. If the distance between the low-water marks of the
natural entrance points of a bay does not exceed 24
nautical miles, a closing line may be drawn between
these two low-water marks, and the waters enclosed
thereby shall be considered as internal waters.
4. Where the distance between the low-water marks of
the natural entrance points of a bay exceeds 24
nautical miles, a straight baseline of 24 nautical miles
shall be drawn within the bay in such a manner as to
enclose the maximum area of water that is possible
with a line of that length.
5. The foregoing provisions do not apply to so-called
“historic” bays, or in any case where the system of
straight baselines provided for in Article 7 is applied.
Historic bays are bays which are treated by the coastal state as
internal waters on the basis of historic rights acknowledged by
other states.
Contiguous zone
The contiguous zone is an area of water not exceeding 24
nautical miles from the baseline. It thus extends 12 nautical
miles from the edge of the territorial sea. The coastal state
exercises authority over that area to the extent necessary to
prevent infringement of its customs, fiscal, immigration or
sanitation authority over its territorial waters or territory and to
punish such infringement. Article 33 (1 and 2), 1982 LOS says:
1. 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.
2. The contiguous zone may not extend beyond 24
nautical miles from the baselines from which the
breadth of the territorial sea is measured.
It should be understood, however, that, according to the
International Law Commission’s Commentary on the Draft, the
power of control given to the littoral state does not change the
nature of the waters. Beyond the territorial sea, the waters are
high sea and are not subject to the sovereignty of the coastal
state.
Exclusive economic zone or “patrimonial sea”
The doctrine on the exclusive economic zone is a recent
development. Prior to the acceptance of this doctrine, all waters
beyond the contiguous zone were considered as high seas over
which no state had control. The doctrine developed owing to the
desire of coastal states for better conservation and management
of coastal fisheries.
The exclusive economic zone is an area extending not more than
200 nautical miles beyond the baseline. The coastal state has
rights over the economic resources of the sea, seabed and
subsoil — but the right does not affect the right of navigation
and overflight of other states. This is a compromise between
those who wanted a 200-mile territorial sea and those who
wanted to reduce the powers of coastal states.
The provisions on the exclusive economic zone are both a grant
of rights to and an imposition of obligations on coastal states
relative to the exploitation, management and preservation of the
resources found within the zone.
Coastal states have two primary obligations:
1. They must ensure through proper conservation and
management measures that the living resources of the
EEZ are not subjected to over-exploitation. This
includes the duty to maintain and restore populations
of harvested fisheries at levels which produce a
“maximum sustainable yield.”
2. They must promote the objective of “optimum
utilization” of the living resources. They therefore
should determine the allowable catch of living
resources. If the coastal state does not have the
capacity to harvest the allowable catch, it must grant
access to other states. The details on this matter are
found in Articles 55 to 75.
The delimitation of the overlapping exclusive economic zone
between adjacent states is determined by agreement.
The Continental (Archipelagic) Shelf
The continental shelf, archipelagic or insular shelf for
archipelagos, refers to:
 (a) the seabed and subsoil of the submarine areas
adjacent to the coastal state but outside the territorial
sea, to a depth of two hundred meters or, beyond that
limit, to where the depth allows exploitation, and
(b) the seabed and subsoil of areas adjacent to islands.
The coastal state has the right to explore and exploit its natural
resources, to erect installations needed, and to erect a safety
zone over its installations with a radius of 500 meters. The right
does not affect the right of navigation of others. Moreover, the
right does not extend to non-resource material in the shelf area
such as wrecked ship and their cargoes.
The Deep Seabed: “Common Heritage of Mankind”
These are areas of the sea-bed and the ocean floor, and their
subsoil, which lie beyond any national jurisdiction. These are the
common heritage of mankind and may not be appropriated by
any state or person. Activities in the area are governed by
Articles 135 tol53 of the 1982 Convention.
Islands
Article 121. Regime of islands
1. An island is a naturally formed area of land, surrounded
by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial
sea, the contiguous zone and the continental shelf of
an island are determined in accordance with the
provisions of the 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.
Islands can be very important because of the possibility of
exploiting oil and gas resources around them. This explains the
controversy over Spratleys. It is noteworthy that islands can
have their own territorial sea, exclusive economic zone and
continental shelf. However, rocks “which cannot sustain human
habitation or economic life” only have a territorial sea. But there
is no clear international law definition of “economic life” referred
to in n. 3.
Artificial islands or installations are not “islands” in the sense of
Article 121. However, coastal states may establish safety zones
around artificial islands and prescribe safety measures around
them. (Article 60[4] and [5])
The High Seas
Article 1 of the Geneva Convention on the High Seas defines the
high seas as “all parts of the sea that are not included in the
territorial sea or in the internal waters of a State.”
The highs seas are subject to six freedoms:
1. freedom of navigation;
2. freedom of overflight;
3. freedom of fishing;
4. freedom to lay submarine cables and pipelines;
5. freedom to construct artificial islands and structures;
and
6. freedom of scientific research.
The first four of the above freedoms were mentioned in the 1958
Convention of the High Seas and the last two were added by the
1982 LOS. But these two are subject to some restrictions.
The flag state has exclusive jurisdiction over its ships on the high
seas to the extent not limited by agreement. By legal fiction, a
ship is a floating part of the flag state. The law of the flag state
is applied to it “on the pragmatic basis that there must be some
law on shipboard, that it cannot change at every change of
waters, and no experience shows a better rule than that of the
state that owns it.”
Freedom of overflight belongs to both civilian and military
aircraft.
Freedom of fishing also includes the duty to cooperate in taking
measures to ensure the conservation and management of the
living resources of the high seas.
Article 86 of the 1982 LOS, on the six freedoms, says: “The
provisions of this part apply to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or
in the internal waters of a state, or in the archipelagic waters of
an archipelagic state.” This, however, is not a definition of the
scope of the area called “high seas.” As noted above, the
contiguous zone is part of the high seas. What Article 86 does is
to specify the areas that are not covered by all the six freedoms.
Hot Pursuit
Article 111 allows hot pursuit of a foreign vessel where there is
good reason to believe that the ship has violated laws or
regulations of a coastal state. The pursuit must commence when
the foreign vessel is within the internal waters, the archipelagic
waters, the territorial waters or the contiguous zone of the
pursuing state. It may continue into the high seas if the pursuit
has not been interrupted. If the foreign ship is in the contiguous
zone, it may be pursued only for violations of the rights of the
coastal state in the contiguous zone.
Mutatis mutandis, the right of hot pursuit shall also apply to
violations of applicable laws and regulations of the coastal state
in the exclusive economic zone or the continental shelf including
the safety zones of the shelf.
Hot pursuit must stop as soon as the ship pursued enters the
territorial waters if its own state or of a third state.
Hot pursuit may be carried out only by warships or military
aircraft, or any other ship or aircraft properly marked for that
purpose.
In the case of The I’m Alone (29 AJIL 326), although the pursuit
was found to be legitimate, the sinking of the pursued vessel
was found to be “not justified by anything in the Convention ...
[nor] by any principle of international law.” The Commission
ordered the United States to apologize to the Canadian
government and to pay damages.
Settlement of Disputes
Peaceful settlement of disputes is compulsory. Under Part XV of
the 1982 Convention States are required to settle peacefully
disputes concerning the Convention. If a bilateral settlement
fails, Article 285 requires submission of the dispute for
compulsory settlement in one of the tribunals clothed with
jurisdiction. The alternatives are the International Tribunal for
the Law of the Sea, the ICJ, or an arbitral tribunal constituted
under the Convention.