The U.S. Territorial Sea and Other Lines in the Water
November 14, 1997
Dennis L. Bryant- New York
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 eventually the three mile rule, the first holding 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 followed the three mile rule for
many years, acceptance was not universal. 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 that the
territorial sea for coastal nations should be limited to three nautical miles.
This maritime legacy was carried to the American colonies and adopted by the new
government of the United States of America following independence.
While no specific statute addresses the extent of the basic U.S. territorial
sea, various regulations reflect the traditional position that the extent of
such claim is three nautical miles from the baseline, which is generally the
low-water mark.
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 nautical miles in breadth since its founding in 1789.
Within the territorial 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.
Over time, various needs arose which could only be efficiently dealt with by
selectively asserting federal jurisdiction beyond three miles offshore. A contiguous
zone out to twelve nautical miles allowed for the enforcement of customs,
sanitation, fiscal, and immigration laws. In 1945, with offshore oil and gas
drilling becoming more productive, President Truman asserted jurisdiction over
the economic resources of the continental shelf off the U.S. coast. With
the increasing efficiency of fishing techniques, depletion of the living
resources of the sea became an issue. The U.S., not unlike other nations, tried
a combination of limited unilateral control and multilateral cooperation, but to
little effect. Eventually, the U.S. joined the increasing number of nations
claiming an exclusive fisheries zone (now called an exclusive economic zone)
extending 200 miles offshore. Federal water pollution laws were also extended to
cover the same area. None of these claims, though, attempted to assert U.S.
sovereignty beyond the traditional three nautical miles, even though an
increasing number of nations were claiming territorial seas of four, six,
twelve, and 200 miles.
This changed in 1988, when President Reagan, in response to the increasing
threats posed by Soviet spy ships hovering off the U.S. coast, proclaimed a
twelve nautical mile territorial sea. The proclamation specifically limited its
application to international law. The Proclamation specifically left undisturbed
the three nautical mile 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
reexamination of the domestic concept of the territorial sea, resulting in a
willingness to deviate from the traditional three mile rule if need be shown.
The situation has become immensely more confused with the passage of the
Antiterrorism and Effective Death Penalty Act of 1996. Section 901 of this
statute declares that all of the U.S. territorial sea as defined in the 1988
Presidential Proclamation is, for criminal law purposes, part of the United
States, subject to its sovereignty, and is within the special maritime and
territorial jurisdiction of the United States for purposes of title 18, U.S.
Code (the federal criminal code). The section also amended the Federal
Assimilative Crimes Act to include within its ambit the newly expanded
territorial sea, while making clear that this expanded area was not within the
jurisdiction of the adjacent coastal state. The legislative history of this
section is sparse and the goal of Congress in this regard is unclear.
While the previous confusion regarding the breadth of the U.S. territorial
sea was real, it was also largely academic. Now, there are potentially serious
consequences involved and little guidance is available to the mariner navigating
in the zone between three and twelve nautical miles off the U.S. coast.
Certainly, all the prior laws still apply in these waters. The issue is which
additional laws apply within this nine mile wide zone. First, all criminal laws
appearing in title 18 of the U.S. Code seem to have expanded their coverage.
Second, criminal laws the coverage of which is defined by the special maritime
and territorial jurisdiction have also gained expanded coverage. Most, but not
all, of this latter group are found in title 18, so the actual number of
additional laws the coverage of which is expanded by this provision is minimal.
A more problematic matter is whether all other federal criminal laws have gained
this expanded coverage. The language is loose and the legislative history is
silent.
The effect of the expansion of the Federal Assimilative Crimes Act is, as
yet, unmeasured. This statute absorbs or assimilates into federal law the state
criminal laws of the adjacent state in matters where the federal criminal code
is silent. The issue of whether an act is covered by an existing federal
criminal statute, thereby prohibiting the use of the Federal Assimilative Crimes
Act, tends to be narrowly construed so as to allow for the incorporation of
state criminal law in any case where the federal law is not exactly applicable.
Originally designed to address military installations and Indian reservations,
its effect in this newly expanded territorial sea may be the most significant
legacy of this unheralded section of the new law to deter terrorism.
Section 702 of the Antiterrorism and Effective Death Penalty Act of 1996
addressed acts of terrorism transcending national boundaries. While making
terrorism involving foreign commerce a separate crime (denominated the
"Federal crime of terrorism"), the measure defined the U.S.
territorial sea, for purposes of that section, as "all waters extending
seaward to 12 nautical miles from the baselines of the United States, determined
in accordance with international law." There is nothing in the legislative
history of either the general section 901 or the more specific section 702 to
indicate how these two measures interrelate. It appears that, in the rush to
enact a new antiterrorism bill, minimal thought was devoted to such an issue.
In addition to the Antiterrorism and Effective Death Penalty Act of 1996,
various other statutes have extended the U.S. territorial sea to twelve miles
for their own special purpose. The Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 was the first federal statute to deviate from the
traditional three mile limit. It provided that the territorial sea, for purposes
of that Act, would be the belt of seas from the U.S. baseline as determined in
accordance with the 1988 Presidential Proclamation. As part of an effort to
deter terrorism against vessels and offshore facilities (e.g., oil rigs), laws
specifically designed to punish such actions were passed. The measures provided,
among other things, that for purposes of those statutes the U.S. territorial sea
extended seaward twelve nautical miles from the baseline.
Several other statutes, though, continue the use of the three mile limit for
the U.S. territorial sea. For instance, the Oil Pollution Act of 1990 (OPA 90)
defines the territorial sea as "the belt of the seas measured from the line
of ordinary low water along that portion of the coast which is in direct contact
with the open sea and the line marking the seaward limit of inland waters, and
extending seaward a distance of 3 miles." Similar language is used in the
Federal Water Pollution Control Act (FWPCA). Other statutes utilize either the
term "territorial sea" or "navigable waters" without
defining the geographic limits.
Further changes are afoot. The Coast Guard Authorization Act of 1997,
currently under consideration by Congress, proposes to make various amendments
to the U.S. Code with regard to the territorial sea and navigable waters.
The Ports and Waterways Safety Act would be amended by this bill, if enacted, to
add the term "navigable waters of the United States," defined as
including "all waters of the territorial sea as described in Presidential
Proclamation 5928 of December 27, 1988." The effect of this provision would
be to expand U.S. Coast Guard jurisdiction for purposes of vessel operating
requirements, vessel traffic service (VTS) systems, safety zones, many Captain
of the Port (COTP) orders, and port access routes, among other things. The
amendment is not intended to affect or transit passage through U.S. waters.
The bill, if enacted, would also add the same new term and definition to
Subtitle II (Vessels and Seamen) of Title 46 (Shipping) of the U.S. Code. Since
this subtitle defines Coast Guard jurisdiction over U.S. flag vessels for most
purposes and over foreign flag vessels for some purposes, its impact could be
equally extensive. Measures covered by this expanded authority include:
negligent operation, carriage of dangerous cargoes by foreign flag vessels,
lightering, uninspected vessels, recreational vessels, load lines, marine
casualty reporting, and federal pilotage authorization.
Even less clear is the effect, if any, the expansion of Coast Guard authority
will have on other measures that rely on the territorial sea and navigable
waters concepts, such as the cabotage laws, but fail to include specific
geographic limits. Coastwise trade concepts are, in large measure, tied to the
territorial sea, even though the term is not utilized in the various statutes.
If the Coast Guard provisions are enacted, the majority of federal laws
containing a geographic limit to the territorial sea will be utilizing the
twelve mile standard. It would not be unexpected for pressure to be placed on
the U.S. Customs Service and other federal agencies to administratively adopt
the twelve mile limit for various jurisdictional purposes.
Domestic airspace is considered to be coterminous with the national
boundaries. Thus, the Federal Aviation Administration (FAA) defines "United
States" to mean the States, the District of Columbia, Puerto Rico, and the
possessions, including the territorial waters, and "the airspace of those
areas." The geographic limits of the territorial sea are not defined in
either the pertinent aviation statutes or the regulations. The FAA exercises
broad authority over aviation in the airspace overlying the United States and
limited authority over aircraft operating in the airspace overlying the waters
between 3 and 12 nautical miles from the coast of the United States. Again, it
is unclear what effect the extension of Coast Guard jurisdiction will have on
the jurisdiction of the FAA.
While mariners on U.S. flag vessels have always been subject to U.S. law,
even outside the old three mile limit, mariners on foreign flag vessels have
traditionally considered themselves immune from all but flag state jurisdiction
once beyond three nautical miles from the U.S. shore, until such time as the
ship entered another territorial sea. Now, for purposes of many (but not all)
federal criminal laws, the line has been moved out to twelve nautical miles. On
the other hand, federal civil laws, such as the Death on the High Seas Act and
the obligation to mark and remove wrecks, are still controlled by the old
territorial limit of three nautical miles. Mariners, and others, will continue
to be confused by the boundaries of the United States so long as it claims
different territorial seas for different purposes.
The most recent example of this confusion is the issue of whether the
broadened federal criminal jurisdiction prohibits gambling on passenger vessels
while operating within this expanded territorial sea. While there is no
indication that Congress had such an intent when it adopted the Antiterrorism
and Effective Death Penalty Act of 1996, the U.S. Attorney for the Eastern
District of New York has issued an opinion letter stating, in substance, that
because this area is now specifically within the special maritime and
territorial jurisdiction of the United States, in order to lawfully engage in
gambling activities, ships must travel twelve - not three - nautical miles from
shore. The vagueness of 1996 Congressional action with respect to whether that
legislative body intended to prohibit gambling within this expanded area must be
contrasted with the specificity with which it two years earlier authorized
gambling occurring on vessels engaged in cruises-to-nowhere, so long as the
gambling took place more than three nautical miles from the shore. This
uncertainty is not merely theoretical. A gaming vessel operator in New York City
has ceased activity (putting upwards of 100 persons out of work) pending the
outcome of litigation against the U.S. Attorney regarding the applicable
territorial limit for this purpose.
For further information, contact:
Dennis L. Bryant, Esq.
Tel: 202-828-1865
Haight Gardner Holland & Knight
Fax: 202-828-1868
Suite 200
2000 K Street, NW
Washington, DC 20006-1809