2.3 Territorial sea
2.3.1 Overview
The coastal State’s sovereignty extends, beyond its land territory and internal waters, to an “adjacent belt of sea, described as the territorial sea”.(1) UNCLOS art. 2 (1). As the internal waters and ports, the territorial sea is thus subject to the sovereignty and full jurisdiction of the coastal State.(2) UNCLOS art. 2 (1). The coastal State’s sovereignty in the territorial sea is exercised subject to UNCLOS and other rules and principles of general international law.(3) UNCLOS art. 2 (3) and preamble, at para. 8. See e.g. arts. 24 and 300. The most important limitation in this regard is the right of innocent passage.(4) UNCLOS art. 17.
2.3.2 Innocent passage
UNCLOS art. 17 grants ships of all States “the right to innocent passage through the territorial sea”. Innocent passage is defined in UNCLOS arts. 18 and 19, excluding passage that is “prejudicial to the peace, good order or security” of the coastal State.(5) UNCLOS art. 19. The term “passage” is explained in art. 18 as being
navigation through the territorial sea for the purpose of:
traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
proceeding to or from internal waters or a call at such roadstead or port facility.
Accordingly, ships proceeding to or from internal waters or ports will have a right to innocent passage through the territorial sea.(6) UNCLOS art. 17, cf. art. 18 (1) b).
For ships present in the territorial sea that are not engaged in innocent passage, the coastal State’s jurisdiction is unlimited by the provisions of the Convention, save for the requirement of good faith and prohibition of abuse of rights in UNCLOS art. 300. Accordingly, these ships can be subject to coastal State regulation of wage and working conditions in the same manner as ships present in the coastal State’s internal waters and ports. It follows from UNCLOS art. 25 (1) that the coastal State “may take the necessary steps in its territorial sea to prevent passage which is not innocent”.
For ships engaged in innocent passage, coastal State jurisdiction is limited. It follows from UNCLOS art. 21 (1) that the coastal State may adopt laws and regulations relating to innocent passage in the territorial sea in respect of, inter alia, navigation, resource preservation and exploitation, environmental protection, and the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. However, such regulations may “not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards”.(7) UNCLOS art. 21 (2).
Based on the wording of article 21 (1), which only states what the coastal State “may” do, the coastal State’s jurisdiction to adopt rules not covered by the list in art. 21 (1) is somewhat unclear. Churchill and Lowe argue that the coastal State, by virtue of its sovereignty, has full jurisdiction to apply legislation regarding matters not listed in art. 21 (1) to foreign-flagged ships engaged in innocent passage.(8) Churchill and Lowe (1999) p. 95.Barnes, on the other hand, argues that the list in art. 21 (1) of what the coastal State “may” do, is exhaustive.(9) Richard A. Barnes, “Article 21” in United Nations Convention on the Law of the Sea A Commentary, Alexander Proelss (ed.), München: Verlag C. H. Beck oHG, 2017, pp. 199–208, p. 201.
For the purposes of the potential regulation of wage and working conditions on board ships in the coastal State’s waters and on its continental shelf, this discussion is of limited interest. The reason is that the limitations on the coastal State’s prescriptive jurisdiction over ships engaged in innocent passage do not affect the coastal State’s right to impose conditions for access to port.
UNCLOS art. 25 (2) states that “[i]n the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject”. Thus, the coastal State even has the same enforcement jurisdiction over ships engaged in innocent passage, but breaching the coastal State’s port entry conditions, as it does over ships engaged in passage which is not innocent.(10) Compare UNCLOS art. 25 (1).