United States: The U.S. Territorial Sea And Other Lines In The Water

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.