Page 16: of Maritime Reporter Magazine (October 2003)

Government Update

U.S. Territorial Sea and Other Lines in the Water

By Dennis L. Bryant, senior maritime counsel, Holland & Knight

Maritime lawyers and others frequent- ly use jurisdictional terms such as terri- torial sea, navigable waters, contiguous zone, and exclusive economic zone. But what does it all mean? What are the meanings of these terms and how were they acquired?

The modern concept of the territorial sea owes its genesis to Hugo Grotius and his work Mare Liberum (Freedom of the Seas) in 1605. He argued, among other things, that a coastal nation could not claim sovereignty over the seas beyond the range of its control from shore. This concept developed over time into the cannon-shot rule and even- tually the three mile rule, the first hold- ing that the coastal nation's sovereignty couldn't extend further than the distance from shore that it could fire a cannon; the second that, for sake of uniformity, the sovereignty of all coastal nations should not exceed three nautical miles offshore. While the majority of coastal nations utilized the three mile rule for many years, acceptance was not univer- sal. Following some initial opposition to the positions espoused by Grotius.

Britain eventually became the prime supporter of the concept of the freedom of the seas and the concomitant view

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Fax: 31-10) 181-485238 e-mail: [email protected] that the territorial sea for coastal nations should be limited to three n.m. This maritime legacy was carried to the

American colonies and adopted by the new government of the United States of

America following independence.

In simpler times, the United States had only one territorial sea, which was all things to all people. The nation had. with reasonable consistency, claimed a territorial sea three n.m. in breadth since its founding in 1789. Within the territo- rial sea, being under the full sovereignty of the United States, all U.S. laws are enforced, as well as those of the adjacent coastal state of the United States.

This changed in 1988, when President

Reagan, in response to the increasing threats posed by Soviet spy ships hover- ing off the U.S. coast, proclaimed a 12 n.m. territorial sea. The proclamation specifically limited its application to international law. The Proclamation left undisturbed the three n.m. territorial sea for all domestic purposes, including law enforcement.

Thus, the Proclamation's only real effect was to require the spy ships to move further offshore. The

Proclamation did, though, cause a reex- amination of the domestic concept of the territorial sea, resulting in a willingness to deviate from the traditional three mile rule if need be shown.

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