CONTIGUOUS ZONE
A state that has a coastal boundary also possesses certain areas of the sea. These areas are divided into various zones under United Nations Convention on the Law of the Sea (UNLOSC) as internal waters, the territorial sea, the contiguous zone, the exclusive economic zone , the continental shelf.
The contiguous zone is a band of water contiguous to the territorial sea to up to 24 nautical miles from the baseline, within which a state can exert limited control for the purpose of preventing or punishing infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.[1] Under Article 33(2) of the LOSC, the maximum breadth of the contiguous zone is twenty-four nautical miles.
However, it should be noted that in comparison with the territorial sea or the EEZ, the contiguous zone is not a complete maritime zone, rather it is subsidiary to the territorial sea for the coastal state to control certain matters of territorial nature while it is part of the EEZ in other senses such as the use of natural resources.[2]
Historical Development
For many years, the marine environment was liberated from regulation of fishing, transportation, and resource exploitation. After some time, Coastal States had an expanded enthusiasm for national security and the authorization of laws to ensure its trade and marine resources. As a result, a balance was needed to maintain the freedom of navigation that many foreign maritime interests had depended upon.
The development of the contiguous zone was a complicated process of concurrence of different claims by coastal States. While it has been considered that the origin of the concept of the contiguous zone dates back to the Hovering Acts enacted by Great Britain in the eighteenth century, it was not until 1958 that rules governing the contiguous zone were eventually agreed. The rules governing the contiguous zone were enshrined in Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, 1958.Later, this provision was, with some modification, reproduced in Article 33 of the LOSC.[3]
United Nations Convention on the Law of the Sea
Sovereignty over bodies of water is regulated by four separate 1958 conventions—the Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf, the Convention on the High Seas, and the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas—and by the comprehensive Law of the Sea treaty (1982), which entered into force in 1994.
The Convention provides the legal framework to be followed for the conduct of various maritime activities and it is the most important international legal instrument of the twentieth century following the Charter of the United Nations.
Before the Convention on the Law of the Sea could address the exploitation of the riches underneath the high seas, navigation rights, economic jurisdiction, or any other pressing matter, it had to face one major and primary issue – the setting of limits. Everything else would depend on clearly defining the line separating national and international waters. Though the right of a coastal State to complete control over a belt of water along its shoreline – the territorial sea – had long been recognized in international law, up until the Third United Nations Conference on the Law of the Sea, States could not see eye to eye on how narrow or wide this belt should be.
The term Contiguous zone is defined in Article 33(1) of the UNLOSC.
Article 303(2) of the UNCLOS Convention permits coastal States to extend their contiguous zone interests to archaeological and historical objects located there:
In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article
Claiming a Contiguous Zone
Unlike Territorial Sea, contiguous zone must be claimed and does not exist automatically. This means that a coastal State may opt not to claim a contiguous zone as forming a part of its maritime zones. Article 33(2) UNCLOS states that the “The contiguous zone may not extend beyond 24 nautical miles”, so therefore it can be less than the stipulated 12 nm.
There are relatively few instances of claims to a contiguous zone that exceeds the rights permitted coastal States under international law. Excessive contiguous zone claims related to security and underwater cultural heritage.
The claim by India, in its Section 5, Maritime Zones Act of 1976, that security is one of the purposes for which a contiguous zone may be claimed has been protested by some of the major maritime powers. [4]
Coastal State Jurisdiction over Contiguous Zone
Article 33(1) under LOSC provides 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 four branches of the laws are not defined by the Convention so therefore it is up to the Coastal States to determine in a reasonable manner what falls exactly under each one of these four categories of laws.
The right of a coastal state to pursue a foreign ship within its contiguous zone has been established under Article 111 (1) as well as Article 33(1) (a) of LOSC. The pursuit may be ordered by the coastal State, even if the vessel is within the contiguous zone, provided there has been a violation of the rights for the protection of which the zone was established.
In the case of The Javirena [5] relating to violation of customs laws the United States Revenue Act of 1789 was used to validate the seizure of the Javirena. The evidence showed that the vessel did not enter any United States Port and was therefore not liable to the penalty prescribed for departure from the customs collection district without making a report or entry.
Settlement of the dispute under maritime laws
There are two types of dispute settlement procedure in LOS Convention. Section 1 of Part XV states the non-compulsory procedures which are the negotiation, the mediation, and the conciliation and Section 2 of Part XV deals with compulsory settlement procedure which includes ITLOS under Annex VI, the ICJ and Arbitral Tribunal created under Annex VII, and the creation of a special Arbitral Tribunal formed as a panel of experts.
[1] LOSC, Article 33(1)
[2] Zou K, Law of the Sea in East Asia: Issues and Prospects
[3] Tanaka, Y., The International Law of the Sea
[4] Sharma, India and the United Nations Convention on the Law of the Sea
[5] 67 Fed. 152 (1895)