The principle of territorial waters

Fishermen at one of the fishing villages along Lake Kivu. FILE 

By Cathy Mputhia

• The principle of territorial waters

The principle of territorial waters states how much a country’s control of the sea extends. Usually the border of any coastal country extends 200 nautical miles into the sea.

The sea is not the only water body that is shared across nations, there are some lakes, rivers and other water bodies that are shared by many countries. No one country can claim exclusive use to an international water body. Some Kenyan examples include River Nile, Lake Victoria and Indian Ocean.

The law of territorial waters therefore governs how much control of the water body can be exercised by either State. The law generally states that the control of an international water body will extend to 200 nautical miles and this will include the airspace as well as the sea bed covering this area.

Anything outside of this is in the domain of international waters which means that no country has control over this area. This is what is referred to as the high seas.

The implication of the doctrine of territorial waters is that there are certain activities that cannot take place inside the territorial waters unless they are regulated.

For example, fishing, exploitation and even deep sea diving for research purposes. Any activities occurring within a country’s territorial waters must be licensed.

For example, conducting scientific research within territorial waters, would require licensing from the relevant body otherwise there is a risk of breaching the laws.

A number of fishermen breach laws regarding territorial waters when they go fishing outside jurisdiction and many times have been caught and charged with crime.

Large commercial fishing companies especially from countries like Japan, prefer to do fishing in the high seas where there is no law as the waters are not owned by any State in particular and, therefore, the need for regulatory approval and licences and others is not there.

I trust that also many of the wildlife programmes that we watch regarding the deep sea, are shot in the high seas where no particular country would claim ownership of such waters, otherwise if they were shot in territorial waters, a filming licence would need to be issued.

Many times disputes commonly called water politics, have emerged regarding usage and other benefits.

The dispute between Kenya and Uganda over Migingo Island is one of many water disputes. However, one of the main hydropolitical dispute has been regarding the usage of River Nile. River Nile passes through 10 African nations.

What further complicates the dispute regarding the River Nile is the many pre-colonial treaties that were signed regarding its usage, between former colonialists.

Some of those treaties were seen as binding to the States that share the River Nile. For example in 1902, Ethiopia through its emperor entered into a treaty with Great Britain that it would not do any construction works over the Blue Nile (that passes through Ethiopia) that would affect the flow of the Nile.

Congo in 1906 signed an agreement with Britain that it would not do any construction works near River Isango which would diminish the flow of the waters to Lake Albert (which is in the territory of DRC) , without the permission of Sudan.