Question:
I have been researching the concept of “U.S. Territorial Waters” and I must say I am completely confused. We don’t need to go into why I need this information (it’s complicated), but the bottom line is that I have been unable to find a single source that discusses all of the different rules. Can you help?
Answer
Our reader is understandably confused. The concept of “territorial waters” refers to the distance from land claimed by the United States to be within its territorial boundaries. It is complicated because the United States, like other countries, claims different amounts of offshore territory for different purposes. Our reader is looking for a single source of information to help understand the rules, so let’s give it a shot.
Before we begin with the actual rules, a historical overview will be helpful. Nations historically extended their jurisdiction for a distance of 3 nautical miles from the low-water mark of their shorelines. This practice was based on the effective range of shore-based cannon during the 19th century, though the 3-mile limit was the accepted measure of territorial jurisdiction until the 1950s. Modern territorial limits are derived from a mix of international treaties, U.S. law, and executive proclamation, and are summarized as follows.
California State Territorial Waters: From the shoreline to three nautical miles offshore. The federal Submerged Lands Act of 1953 (43 U.S.C. §1301 et seq.) granted ownership of lands and resources to coastal states such as California within a range of three nautical miles from their coastlines (a nautical mile is equivalent to one minute of latitude, or 6,080 feet). The Act provides a few exceptions to this rule, notably the Gulf coasts of Texas and Florida, where State jurisdiction extends to nine miles offshore.
U.S. Federal Waters: From the shoreline to twelve nautical miles offshore. Pursuant to a 1988 proclamation by President Reagan (Proclamation No. 5928), the United States now asserts sovereign rights over the seabed and waters out to 12 nautical miles from shore. This is consistent with international agreements, particularly the United Nations Convention on the Law of the Sea (1982), though the U.S. is not a signatory to that convention.
Exclusive Economic Zones (EEZ): From 3 to 200 nautical miles offshore. The Magnuson–Stevens Fishery Conservation and Management Act provided for the management of marine fisheries in U.S. waters, and it extended the territorial boundary for fisheries management out to 200 miles (the previous boundary was 12 miles). It was originally enacted in 1976 to assert control over foreign fisheries that were operating within 200 nautical miles off the U.S. coast, and it ultimately helped to grow the U.S. fishing industry. After the enactment of the Magnuson Act, and pursuant to a 1983 proclamation by President Reagan (Proclamation No. 5030), the United States now asserts jurisdiction over the living and non-living resources within the Exclusive Economic Zone (EEZ). This is again consistent with United Nations Convention on the Law of the Sea. Jurisdiction in the EEZ extends 200 miles offshore and is exercised to control all economic resources within the zone, including fishing, mining, oil exploration, and any pollution of those resources (note however that it does not regulate or prohibit passage or loitering above, on, or under the surface of the sea).
And finally – Jurisdiction aboard U.S. Flagged Vessels on the High Seas: Complicated. The U.S. is a signatory to the United Nations Convention on the High Seas (adopted by the U.N. in 1958; a predecessor to the 1982 Convention on the Law of the Sea). This treaty provides, among other guidelines, that “Ships have the nationality of the State whose flag they are entitled to fly” [Article 5], and “Ships shall . . . be subject to [the Flag State’s] exclusive jurisdiction on the high seas” [Article 6]. This provides Congress with the authority to extend a long list of broad reaching laws to U.S. flagged vessels beyond the territorial limits of the United States. Most of the case law that has tested the extent of Congressional power in this area concerns the enforcement of U.S. criminal law on the high seas, particularly in the area of drug trafficking. For example, in United States v. Riker, a 1982 Federal Appellate case, the Court noted that “the United States has power to define and punish criminal offenses aboard ship just as it has power to do so upon American territory.”
David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com, or via email at [email protected].
