The Contiguous Zone

Twenty-four miles from the baseline, not twenty-four beyond the territorial sea. Since the territorial sea may be up to twelve, the contiguous zone is in practice the twelve miles beyond it, and a State claiming a narrower territorial sea gets a correspondingly wider contiguous belt.

It must be claimed. Unlike the continental shelf, which exists automatically, the contiguous zone is optional. A State that does not claim one does not have one.

Archaeological objects

Article 303 adds one further power, and it is easy marks because it sits outside Part II.

States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for that purpose. 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 article 33.

That is a deeming provision, and it is drafted that way precisely because the contiguous zone otherwise reaches only offences connected to the land or the territorial sea.

India's zone

Section 5 of the Maritime Zones Act 1976. The contiguous zone of India is an area beyond and adjacent to the territorial waters, the limit of which is twenty-four nautical miles from the nearest point of the baseline referred to in section 3(2).

Section 5(4) empowers the Central Government to exercise such powers and take such measures in or in relation to the contiguous zone as it considers necessary with respect to (a) the security of India, and (b) immigration, sanitation, customs and other fiscal matters. Section 5(5) lets it extend any enactment on those matters to the zone by notification, and provides that an enactment so extended shall have effect as if the contiguous zone were a part of the territory of India. Section 5(2) allows the limit itself to be altered by notification having regard to international law and State practice, and section 5(3) requires resolutions of both Houses of Parliament before such a notification issues.

Notice two divergences. The Indian Act names security among the purposes and article 33 does not. And the deeming words in section 5(5), that an extended enactment has effect as if the zone were part of India's territory, go further than the control article 33 confers. Both are shared with a number of other States, and both are worth stating in an answer rather than smoothed over: an Indian court applies the Indian Act, and whether a claim of that width is consistent with the Convention is a separate question.

A worked example

State DD claims a twelve-mile territorial sea and a twenty-four-mile contiguous zone. A foreign vessel is detected twenty miles off the coast. Four situations arise.

It is transferring untaxed cigarettes to fast boats heading for the shore. Article 33(1)(a): control necessary to prevent infringement of customs and fiscal laws within the territory or territorial sea. Prevention is precisely what the zone is for.

It carries a man who smuggled goods ashore last week and is now leaving. Article 33(1)(b): control necessary to punish infringement committed within the territory or territorial sea. The offence was committed on land, and the zone allows the pursuit.

It is fishing. Article 33 does not mention fisheries, so nothing in the contiguous zone helps. State DD's power comes instead from the exclusive economic zone, if it has claimed one, under [The Exclusive Economic Zone].

It is conducting a military survey. Neither customs, fiscal, immigration nor sanitary. Article 33 gives no power at all, and a claim based on security would rest on State DD's own legislation rather than on the Convention.

A fifth situation: it is lifting amphorae from a wreck on the seabed twenty miles out. Article 303(2) is the answer: State DD may presume that removal without its approval would result in an infringement within its territory or territorial sea of the article 33 laws, and may therefore act.

And if the vessel simply sails through at twenty miles doing nothing? Nothing arises. There is no right of innocent passage in the contiguous zone because there is no sovereignty to qualify; navigation there is free, as it is throughout the exclusive economic zone.

Distinctions table

What it does NOT mean

It is not a zone of sovereignty. Article 33 confers control, not sovereignty, and the coastal State's laws do not extend there of their own force.

It does not cover fisheries, security, the environment or research. Four subjects, and the list is closed.

It does not create offences committable in the zone. The infringement must be one occurring, or already committed, within the territory or territorial sea.

Twenty-four miles is measured from the baseline, not from the outer edge of the territorial sea.

It is not automatic. Unlike the continental shelf, it must be claimed.

Limits and criticism

The four subjects are a nineteenth-century list. Customs, fiscal, immigration and sanitary were the concerns of the era in which the zone developed. Security, which many States care about most, is absent, which is why a number of them, India among them, have legislated for it anyway and why the divergence between practice and the text is wider here than almost anywhere else in the Convention.

The zone has been largely overtaken by the exclusive economic zone. A State with a two-hundred-mile zone has powers over resources and over defined activities out to a distance eight times greater, and the contiguous zone matters now chiefly for the four enforcement subjects the exclusive economic zone does not touch.

The connection requirement is awkward at sea. Requiring the infringement to relate to the territory or territorial sea makes sense for smuggling and immigration and makes little sense for anything else, which is exactly why article 303 had to create a presumption rather than simply adding archaeology to the list.

Quick revision

Article 33(1): in a zone contiguous to its territorial sea the coastal State may exercise the control necessary to (a) prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea, and (b) punish infringement of those laws committed within its territory or territorial sea.

Article 33(2): the zone may not extend beyond 24 nautical miles from the baselines.

Control, not sovereignty; four subjects only; the offence must touch the territory or territorial sea; measured from the baseline; and it must be claimed.

Article 303: duty to protect archaeological and historical objects, and the coastal State may presume that their removal from the article 33 zone without its approval would infringe the article 33 laws within its territory or territorial sea.

India: section 5 of the Maritime Zones Act 1976, twenty-four nautical miles. s.5(4) adds the security of India to immigration, sanitation, customs and fiscal matters, which article 33 does not; s.5(5) extends enactments to the zone as if it were part of the territory of India; s.5(2) and (3) allow the limit to be altered by notification approved by both Houses.

Test yourself

1. What may a coastal State do in its contiguous zone?

Only what article 33(1) permits: exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea, and to punish infringement of those laws committed within its territory or territorial sea. It exercises control, not sovereignty, its laws do not apply in the zone of their own force, and the four subjects are exhaustive.

2. How is the twenty-four miles measured, and why does it matter?

From the baselines from which the breadth of the territorial sea is measured, under article 33(2), and not from the outer edge of the territorial sea. It matters because the contiguous zone therefore overlaps the territorial sea rather than beginning where it ends: a State claiming the full twelve miles of territorial sea has a further twelve miles of contiguous zone, and a State claiming less has correspondingly more.

3. A foreign ship is fishing eighteen miles off the coast. Can the coastal State act under article 33?

No. Article 33 lists customs, fiscal, immigration and sanitary laws, and fisheries is not among them. Any power the coastal State has comes from a different regime: if it has claimed an exclusive economic zone, article 56 gives it sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources out to two hundred miles, and articles 61 and 62 govern conservation and utilisation. The contiguous zone is irrelevant to the problem.

4. Explain the connection the infringement must have with the land.

Article 33 does not allow the coastal State to create or enforce offences committed in the contiguous zone itself. It allows control necessary to prevent an infringement that would occur within the territory or territorial sea, and to punish one already committed there. So the zone is an outward extension of enforcement in respect of onshore and territorial-sea offences, not a zone in which the coastal State's law operates. Article 303(2) had to create a presumption to bring the removal of archaeological objects within that structure.

5. What does article 303 add?

A duty on States to protect objects of an archaeological and historical nature found at sea and to cooperate for that purpose, and a specific power: in order to control traffic in such objects the coastal State may, in applying article 33, presume that their removal from the contiguous zone without its approval would result in an infringement within its territory or territorial sea of the laws referred to in article 33. It is a deeming provision, necessary precisely because article 33 otherwise reaches only offences connected with the land or the territorial sea.

6. Does India's contiguous zone match article 33?

Not exactly, and the difference is worth stating. Section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 fixes the zone at twenty-four nautical miles from the baseline, which matches article 33(2). But section 5(4) empowers the Central Government to exercise powers in the zone with respect to the security of India as well as immigration, sanitation, customs and other fiscal matters, and security appears nowhere in article 33; and section 5(5) provides that an enactment extended to the zone has effect as if the contiguous zone were part of the territory of India, which is stronger than the control article 33 confers. A number of other States legislate similarly. An Indian court applies the Indian Act; whether a security claim in the contiguous zone is consistent with the Convention is a separate question, and it is one on which practice and the text diverge.