April 28, 2012

Jurisdiction of the Coastal State in the Territorial Sea and the Contiguous Zone


    As a general rule the Coastal State has numerous rights when asserting jurisdiction in the territorial sea and the contiguous zone.  However, the Coastal State’s rights are limited in instances where the vessel at issue is traveling under a right of innocent passage.  Hence, the Coastal State must balance the customary right of innocent passage against its own rights as a sovereign state pursuing national interests.  This essay will examine how the territorial sea and contiguous zone are defined and then discuss the right of innocent passage to illustrate how jurisdiction of the Coastal State functions.
     In discussing the jurisdiction of the Coastal State it is helpful to have a basic understanding of where the two maritime zones exist.  The territorial sea extends 12 nautical miles from the Coastal State’s baseline and is defined as a belt of sea adjacent to the coast upon which the sovereignty of the state extends.  The contiguous zone also extends 12 nautical miles but is measured beginning from the territorial sea’s outer edge.  The Coastal State’s authority within the contiguous zone is justified on the grounds that maintenance of rights within the territorial sea depends on an ability to project authority within the contiguous zone.
     In practical terms, jurisdiction in the territorial sea allows the Coastal State to reserve fisheries, to exercise a general police power over security or health matters, and to control trading practices.  A good example of jurisdiction in the territorial sea is the Anglo-Norwegian Fisheries Case where Norway was allowed to exclude British fishermen from fishing.  Jurisdiction in the territorial sea also permits the Coastal State to subject passing vessels to local laws and regulations provided these conform with international and treaty obligations.  (see UNCLOS Article 16 and 17).  However, the Coastal State’s jurisdiction in the territorial sea is not absolute.
When asserting jurisdiction in the territorial sea over a foreign vessel, the Coastal State is obliged to recognize the customary right of innocent passage.  Passage is innocent as long as it is not prejudicial to the peace, good order or security of the Coastal State.  (UNCLOS Article 19).  In determining whether a foreign vessel’s right to innocent passage should be recognized, authorities must consider items such as whether the vessel is a warship or whether criminal activity on the vessel extends to the Coastal State.  The Corfu Channel Case provides a starting point to examine the tension between the right of innocent passage and jurisdiction over foreign vessels in the territorial sea.  In Corfu, the ICJ holds that states in time of peace have a right to send their warships through straits used for international navigation.  However, the decision seems to conflict with the modern trend in UNCLOS Articles 22, 23, and 24 which appear to cumulatively provide the Coastal State with more control over foreign vessels during time of peace.  Therefore, it would appear that more deference will be given to the Coastal State’s own jurisdictional determinations in the territorial sea.
     When compared to jurisdiction in the territorial sea, jurisdiction in the contiguous zone might be best characterized as “control.”  “Control” of the contiguous zone allows the Coastal State to anticipate and prevent offences that may damage its territorial sea interests.  The Coastal State finds authority to control the contiguous zone in both UNCLOS Article 33 and GCTSCZ Article 24.  Accordingly, a Coastal State may exercise control of the contiguous zone necessary to: (1) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea and (2) punish infringement of the above laws and regulations committed within its territory or territorial sea.  As described in the text, contiguous zones are derived from customs zones, immigration zones or zones for sanitary or health purposes.
     A key concept in examining jurisdiction in the contiguous zone is that it arguably provides Coastal States control over the high seas in areas claimed as exclusive economic zones (EEZs).  (see GCTSCZ Article 24).   If this is correct, the jurisdiction of the Coastal State in the contiguous zone might also be characterized as a “floating-jurisdictional power” that increases or decreases according to the value placed on economic interest found in the zone.  In sum, jurisdiction of the Coastal State in the contiguous zone should be treated as unique.
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