Know Your Boundaries
“ People asking questions lost in confusion
Well I tell them there’s no problem, only solutions ”
—John Lennon, “ Watching the Wheels ”
There’s been some palaver (idle chatter) circulating in the yachting industry about a group of yacht guests that wanted to go jet skiing off the coast of Italy. All the guests were accomplished in water sports. However, Italy has very strict laws regarding the use of personal watercraft. These laws stipulate the need for an Italian boating license or a Certificate of Competency for anyone that is driving a jet ski in Italian waters. The Certificate of Competency course takes at least two days for those who already have some boating experience, and the yacht’s guests were only going to be on board for seven days.
The problem was whether to please the guests or please the government. The solution: Go beyond the Italian 12-nautical-mile territorial limit for a day of fun in the sun.
“ Freedom of the seas ” is a fundamental principal of the law. The concept originated in the early 17th century when the Dutch wanted a part of the East Indies trade. Spain and Portugal, along with other smaller nations, claimed control over all the seas, so the Dutch were prevented from reaching foreign ports. The theory that a country could claim control of the sea was called “ closed sea. ” This premise held true until Hugo Grotius, a pioneer in international law, argued for the right of “ innocent passage ” on the high seas. He believed “ the sea is the property of no one. ” He derived this concept from early Roman law and the maritime customs of Asia and Africa.
The idea of “ freedom of the seas ” that would extend to the edge of the beach didn’t work out in practice. Countries were fearful of armed attack and smuggling. Subsequently, they claimed control of the water immediately off their shores.
In the 18th century, coastal states had jurisdiction over coastal waters for 3 nautical miles (3.45 miles, or 5.55 kilometers) from their shores. This measurement originated from the “ swath, ” or the average length that a cannon could be shot from shore; hence, the portion of an ocean that a sovereign state could defend from shore.
Territorial water or territorial sea was defined by the 1982 United Nations Convention on the Law of the Sea as waters that extend, at the most, 12 nautical miles from the baseline of a coastal state as it measures at the low mean water line. Territorial waters are then regarded as the sovereign territory of the state. Since the late 20th century, the “ 12 (nautical) mile limit ” has become almost universally accepted. However, the word “ almost ” should not be taken lightly. Benin, the Republic of the Congo, Ecuador, El Salvador, Liberia, Peru, Somalia and some parts of Estonia all claim a 200–nautical–mile limit of territorial waters.
Areas outside of territorial waters are referred to as international waters unless a state’s territorial waters include a contiguous zone. This zone can extend from the outer edge of the territorial sea for up to 24 nautical miles including the territorial waters.
The state can then exert limited control in punishing and preventing the infringement of its customs, immigration laws, sanitary laws and regulations within its territorial sea and designated contiguous zone. However, in the contiguous zone, there is no standard rule for resolving conflicts. The state with the question or problem must decide on a solution.
The rules that govern the use of the sea are a mixture of treaties, customary law that has developed over centuries and continually developing international law. During Prohibition, the United States agreed by treaty to arrests within a one-hour sailing distance from shore. In 1996, the US Congress extended the nation’s territorial jurisdiction to 12 nautical miles offshore as a part of the anti-crime and terrorism bill. However, in 1997, a court case in Brooklyn regarding gambling said that the government’s interpretation of what constituted territorial jurisdiction was too broad and the ambiguity of the law gave gambling boats the right to a 3–nautical–mile limit. The US set a contiguous zone in 1999 of a 24–nautical–mile limit.
Changes to territorial waters seem to fluctuate like the waves of the sea for which the laws are placed. The original premise that “ the sea is the property of no one ” is still being argued today.
Battles for the freedom of navigation have been fought as recently as 1981 and in 1989, when Libya claimed the entire Gulf of Sidra as its territorial waters. The complication of territorial and contiguous zones is as daunting as the number of coastlines that line the seas. To further exacerbate the confusion, the continental shelf and the economic zone can extend the outer limits of a territorial sea to a maximum of 200 nautical miles (230 miles, or 370.4 kilometers).
Given the unique characteristics of the sea and its use for trade, for pleasure and for discovery, it has long been recognized that ships of all states have the “ right of innocent passage” through any state’s territorial sea. “ Innocent passage ” must be continuous and expeditious. If a vessel stops or anchors, it must be for honorable reasons such as rendering assistance to persons, ships, or aircrafts that are in distress or danger. Force majeure or acts of nature are also considered reasons for interrupting innocent passage. In essence, if your intent is just to cruise the coast in a vessel that flies a flag that is foreign to the area in which you are cruising, behave yourself, don’t disrupt the peace and power on through when you are in territorial waters.
It’s important to remember that:
• A coastal nation has maximum control over internal waters, economic resources within its exclusive economic zone and under its continental shelf, average control over territorial waters and minimal control over contiguous zones.
• A coastal nation offers the right of innocent passage through their territorial sea only if the vessel is continuous, expeditious and peaceful.
• A coastal nation is powerful. Visiting their internal and territorial sea is a right as long as you follow “ innocent passage rules. ”
• A coastal nation expects you to study your charts and become familiar with the Rules of the Road for the country that you are visiting.
All mariners are familiar with the lines of demarcation on charts for COLREGs (International Regulations for Preventing Collisions at Sea) or Collisions Regulations. Inshore of the COLREG lines, inland water rules are in effect; outside of the demarcation line denotes international waters and international rules. COLREGs are documents that are suitable for guiding vessels. Navigational rules are set through COLREGS and International Rules. However, there are often multiple rules that are simultaneously in effect for internal, territorial, contiguous, economic and continental shelf zones that operate outside of the auspice of COLREGS. Ignorantia legis neminem excusat. Ignorance of the law excuses no one, and I’ll bet Illiud latine dici non protest!
The story of the yacht guests that wanted to ride personal watercraft ends with clear blue Italian skies, ½–foot seas and 1 to 2 knots of wind, 12 nautical miles out in the ocean for nine hours of the most glorious jet ski adventure that anyone could hope to experience. It was “ a trip of a lifetime. ” No problems, only solutions.