Humanity has been serving and using the the sea since ancient times and for different purposes, which have been varying in importance according to technological development and the needs of the specific different periods of History. It was always a link to trade and communication as well as a source of wealth. Those uses were the ones that drove states to set customary rules to determine their respective rights and rulings over maritime spaces.
Through a simple scheme, which lasted until almost the end of the Second World War, the sea was normally divided into two spaces: one adjacent to the coast, where the coastal State had full sovereignty, the Territorial Waters; and another of a common nature, the High Seas where the principle of “freedom of the seas” ruled. The only discrepancy was the width of the strip corresponding to the territorial sea, since, despite the fact that the 3-mile rule became almost universal, different states kept another figure. This 3 mile delimitation is the basis of the controversy between Gibraltar and Spain as the Territorial Waters were not mentioned in the 1713 Utrecht Treaty.
With the diversification and the increase of the uses of the sea, due to the demographic, economic and technological growth, new and important interests appeared, as well as a complex interaction between them, emerging new notions to delimit the spaces Maritime, such as the Continental Shelf, the Contiguous Zone the Exclusive Economic Zone, the seabed or, more recently, the archipelagic waters.
The need to precisely delimit each of these maritime spaces and the growing importance of fisheries and oil extraction prompted the holding of major international conferences that finally had success with the United Nations Convention on the Law of the Sea of 1982, (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty. This Convention, pondering the different economic, strategic and technological factors concurrent, was able to determine the breadth of the Territorial Water as a maritime space adjacent to the territory of a state, where it exercises its sovereignty, and which reaches the airspace, the seabed and the subsoil, with an extension of up to 12 miles from the coastal baselines. The limit of 12 miles of the Territorial Waters also sea serves to delimit other spaces like the Contiguous Zone – that comprises up to another 12 miles – in which a state would still have jurisdiction in some cases on areas like customs, taxation, immigration and pollution – and the Exclusive Economic Zone up to 200 miles – in which the coastal nation has sole exploitation rights over natural resource – counted in both cases since the end of the Territorial Waters.
On this international level, the coastal State has the power to regulate and reserve for its nationals the use of the living and mineral resources of the territorial waters, its seabed and its subsoil, as well as to prohibit and regulate the flight of aircraft from Third States. However, it cannot impede the navigation of ships from other states when they do so in accordance with the so-called “principle of innocent passage “, consisting of the rapid and uninterrupted navigation, although justified anchorage and detention is permitted, provided it does not affect to peace, good order or security of the coastal State. However he retains the power to dictate rules to preserve safe navigation and to protect the marine environment, such as, for example, it is contemplated in the law of ports of the state and the Merchant Navy. In addition, it exercises jurisdiction over these vessels under certain circumstances, but it cannot tax the mere fact of the passage through the territorial sea.
Carlos Espinosa
Solicitor & Tax Adviser
+34 627 41 32 01
carlos.espinosa@iurisnautic.com
