2.3 Territorial Sea
The territorial sea stretches from the baselines on the coast into the sea to 12 nautical
miles having been accepted under the United Nations Convention on the Law of the
Sea.
7 States had begun to claim more than 3 nautical miles which was the canon-shot
rule
8 under customary international law, hence the agreement of 12 nautical mile
territorial sea by UNCLOS. The territorial sea is considered as part of the territory of
the coastal State and hence the enjoyment of sovereignty by the coastal State. Even
though the coastal State enjoys sovereignty within its Territorial Sea, in line with the
freedom of navigation, the sovereignty of the coastal States is subject to the right of
innocent passage of foreign vessels.
9 The passage through the territorial sea by all
ships including warships and sub-marines is recognized under UNCLOS.
The passage of warships must not disturb the peace and good order of the coastal
State and submarines must navigate on the surface and show their flag. Passage is
defined as innocent of it is not prejudicial to the peace, good order or security of the
coastal State.
10 There are a number of activities which make passage non-innocent
and which are spelt out in UNCLOS. Even though the list is not exhaustive it forms
the basis of determining whether the passage of foreign submarines, other under
water vehicles and ships in the coastal States territorial waters is innocent or
non-innocent.
11
The activities include:
(1) Military activities
(2) Activities contrary to the coastal State’s customs, fiscal, immigration or security
regulations
(3) Pollution
(4) Fishing activities
(5) Research or survey activities
(6) Any act of propaganda aimed affecting the defence or security of the coastal
State,
(7) Any exercise or practice with weapons of any kind and the omnibus protection
(8) Any other activity not having direct bearing on passage.
One of the earliest decisions of the International Court of Justice with respect to
innocent passage is the Corfu channel case. On October 22nd 1946, two British
cruisers and two destroyers, entered the Corfu Strait. The channel was in Albanian
waters. One of the destroyers the Saumarez struck a mine while passing through the
channel and got severely damaged. The destroyer, the Volage, while towing the
Saumarez struck another mine and was also seriously damaged. Forty-five British
7 UNCLOS Articles 2, 3 and 4.
8 Based on the distance travelled by a cannon shot fired from the coast.
9 UNCLOS Article 13.
10 UNCLOS Article 19(1).
11 UNCLOS Article 19.
498
E. K. Mbiah
The territorial sea stretches from the baselines on the coast into the sea to 12 nautical
miles having been accepted under the United Nations Convention on the Law of the
Sea.
7 States had begun to claim more than 3 nautical miles which was the canon-shot
rule
8 under customary international law, hence the agreement of 12 nautical mile
territorial sea by UNCLOS. The territorial sea is considered as part of the territory of
the coastal State and hence the enjoyment of sovereignty by the coastal State. Even
though the coastal State enjoys sovereignty within its Territorial Sea, in line with the
freedom of navigation, the sovereignty of the coastal States is subject to the right of
innocent passage of foreign vessels.
9 The passage through the territorial sea by all
ships including warships and sub-marines is recognized under UNCLOS.
The passage of warships must not disturb the peace and good order of the coastal
State and submarines must navigate on the surface and show their flag. Passage is
defined as innocent of it is not prejudicial to the peace, good order or security of the
coastal State.
10 There are a number of activities which make passage non-innocent
and which are spelt out in UNCLOS. Even though the list is not exhaustive it forms
the basis of determining whether the passage of foreign submarines, other under
water vehicles and ships in the coastal States territorial waters is innocent or
non-innocent.
11
The activities include:
(1) Military activities
(2) Activities contrary to the coastal State’s customs, fiscal, immigration or security
regulations
(3) Pollution
(4) Fishing activities
(5) Research or survey activities
(6) Any act of propaganda aimed affecting the defence or security of the coastal
State,
(7) Any exercise or practice with weapons of any kind and the omnibus protection
(8) Any other activity not having direct bearing on passage.
One of the earliest decisions of the International Court of Justice with respect to
innocent passage is the Corfu channel case. On October 22nd 1946, two British
cruisers and two destroyers, entered the Corfu Strait. The channel was in Albanian
waters. One of the destroyers the Saumarez struck a mine while passing through the
channel and got severely damaged. The destroyer, the Volage, while towing the
Saumarez struck another mine and was also seriously damaged. Forty-five British
7 UNCLOS Articles 2, 3 and 4.
8 Based on the distance travelled by a cannon shot fired from the coast.
9 UNCLOS Article 13.
10 UNCLOS Article 19(1).
11 UNCLOS Article 19.
498
E. K. Mbiah