National Waters and International Waters

For operational purposes, the world’s oceans are divided

into 2 parts.

The first includes internal waters, territorial seas, and

archipelagic waters. These national waters are subject to
the territorial sovereignty of coastal nations, but with
certain navigational rights reserved to the international
community.

The second part includes waters of the exclusive

economic zone and the high seas. These are international
waters in which all nations enjoy the high seas freedoms of
navigation and overflight.
 Internal Waters
Definition

Waters on the landward side of the baseline

of the territorial sea form part of the internal
waters of the State. UNCLOS Art 8
 CONCEPT OF TERRITORIAL SEA
 

• The concept of territorial sea developed naturally on the basis of the fact that
it is adjacent to the coastal state.

• Baldus, a jurist consult of the 14th century, wrote, “ The Prince is the Lord of
his territory and of the sea subject to him. The portion of the sea subject to
him is adjacent to coasts of his territory”.

• However, it was Galiani, the Italian jurist, who coined the term
“ mare territorial” ( territorial sea ).

• Until the middle of the 19th century, however, there was only one theory of
nature of territorial sea i.e, that the government of coastal waters depended
upon coastal states having property in the sea. This notion was embodied in
the cannon shot rule of Bynkershoek , and the jurists who disagreed with him
said that the rights of coastal states in territorial sea were proprietory in
character.
• The concept of territorial sovereignty in territorial sea was amply
discussed in the famous case Queen Vs Keyn (1876) 2 Exchequer Div
63 .

• In this case the captain of a German steamer, called Franconia was

convicted by a lower British Court of man slaughter for the death of a
passenger caused by a collision , that took place within 3 miles of the
British coast.

• The higher court of England i.e, “ The Court of Crown cases Reserved”,
dismissed the case on the ground that although the exercise by states
of jurisdiction over the marine league, was evidenced by the practice
of nations and by the statements of the writers of authority , yet
Parliament had not actually extended the criminal jurisdiction of the
courts over the territorial waters in question.
 Territorial Sea
Definition
– Up to 12nm from baseline. UNCLOS Art 3
• Coastal State Rights
• The Right of Innocent Passage-The Right of
Innocent Passage:- Ships of all States, whether
coastal or land-locked, enjoy the right of
innocent passage through the territorial sea.
UNCLOS Art 17
Passage is innocent so long as it is not prejudicial to the peace,
good order or security of the coastal state. UNCLOS Article 19
• Any threat/use of force against coastal state
• Weapons exercise/practice
• Intelligence collection against coastal state
• Act of propaganda directed against coastal state
• Launching/recovery of aircraft
• Launching/recovery of military devices
• Loading/unloading of goods/persons contrary to coastal states
customs, fiscal, immigration, sanitation laws
• Willful and serious pollution
• Research or survey activities
• Interfering with coastal state communications
• Any activity not directly bearing on passage
• Submarines must navigate on the surface and
show their flag UNCLOS Article 20
• Suspension of Innocent Passage
• • Suspension of Innocent Passage must be
non-discriminatory and temporary UNCLOS
Article 25
Submarines must navigate on the surface and show
their flag UNCLOS Article 20
Innocent Passage
 INDIAN POSITION ON TERRITORIAL SEA
•  The Constitution of India ,1950 refers to the territorial waters only in two places:
Article 297 and entry 57 List I of the Seventh Schedule.

• Article 297 provides ,inter alia, that all lands, minerals and other things of value
under lying the ocean within the territorial waters of India, shall vest in the Union
and be held for the purposes of the Union , and that the limits of the territorial
waters shall be such as may be specified from time to time, by or under any law
made by Parliament.

• Entry 57 places the subject matter of fishing and fisheries beyond territorial waters
within the legislative field of the Parliament.

• The Constitution is silent on the question of the width of territorial waters of India.

• Consistent with the view then prevailing within the British Common Wealth of
Nations on the extent of territorial waters , the constitution – makers understood
this to be 3 nautical miles from low water mark on the coast. Nevertheless, they
did not provide for any specific limit in the Constitution itself.
• In the United Kingdom, the Crown has the prerogative power to lay down the limit of the
British territorial waters, unless the same is abrogated by an act of Parliament.

• The same is the position in India also. The territorial waters of India are within the
legislative competence of Parliament. In the absence of parliamentary legislation, the
executive power of the Union shall, by virtue of Article 73 of the Constitution, extend,
subject to the provisions of the Constitution, to the matters with respect to which
Parliament has powers to make laws.

• In the exercise of the said power, the President of India issued on 22 March 1956 , a
Proclamation in which it was declared:
“ Notwithstanding any rule of law or practice to the contrary, which may have been
observed in the past in relation to India or any part thereof, the territorial waters of India
extend into the sea to a distance of 6 nautical miles measured from the appropriate
baseline , a declaration which implicitly recognized that until the issue of the said
Proclamation, India had a 3 mile maritime belt.”

• Later, on 30 September 1967, the President of India, issued a Proclamation, in

supersession of the earlier Proclamation where in it was stated that “ the territorial
waters of India into the sea would be to a distance of 12 nautical miles measured from
the appropriate baseline”
 Constitution (Forty-second Amendment) Bill, 1976
which was enacted as the Constitution (Fortieth
Amendment) Act, 1976
Art 297. Things of value within territorial waters or continental shelf
and resources of the exclusive economic zone to vest in the Union.—

(1) All lands, minerals and other things of value underlying the ocean within
the territorial waters, or the continental shelf, or the exclusive economic
zone, of India shall vest in the Union and be held for the purposes of the
Union.

(2) All other resources of the exclusive economic zone of India shall also
vest in the Union and be held for the purposes of the Union.

(3) The limits of the territorial waters, the continental shelf, the exclusive
economic zone, and other maritime zones, of India shall be such as may
be specified, from time to time, by or under any law made by Parliament.
• This matter was considered for the first time in 1976, when Parliament passed
the MZI,1976 .
• Section 3 of the MZI Act, 1976 provides as follows:
(1)The sovereignty of India extends and has always extended to the territorial
waters of India ( herein after referred to as the territorial waters) and to the
sea bed and sub-soil underlying and the air-space over such waters.
(2)The limit of territorial waters is the line every point of which is at a distance of 12
nautical miles from the nearest point of the appropriate baseline.
(3)Notwithstanding anything contained in sub-section (2), the Central
Government may, whenever it considers necessary so to do having regard to
International Law and State practice , alter by notification in the Official
Gazette, the limit of the territorial waters.
(4)No notification shall be issued under sub-section (3) unless resolution
approving the issue of such notification , are passed by both Houses of
Parliament.

•  Sec 3 expressly recognizes the principle that the extent of territorial waters is
governed by international law. Even without this explicit statement of the Act,
the legal position would have been the same.
• CONCEPT OF INNOCENT PASSAGE THROUGH TERRITORIAL SEA
• It would not be out of place to mention here that the concept
of “ innocent passage” and hence, the concept of territorial
sea germinated in , however, inchoate form in the state
practice and legal thinking of ancient India.
• The “ Arthashashtra” of Kautilya provides adequate testimony
of this contention.
• Prof. Nawaz writes, “ The state in ancient India realized the
importance of maritime jurisdiction and provided rules to
regulate navigation, ports, harbor and piracy.

• The right of innocent passage was, therefore, the result of an

attempt to reconcile the freedom of ocean navigation with the
theory of territorial waters.