This article is written by Amrita, pursuing 6-Month Growth Camp: Preparation for LLM Abroad from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
We are hearing the quote ‘Water is Life’ right from our primary class which covers more than 70% of the earth’s surface. It is one of the top factors considered by scientists when they talk about life on other planets or the moon etc. Besides its necessity, it also has importance when it comes to territorial jurisdiction regarding seas or oceans as history is full of incidents having multilevel claims or counterclaims of maritime resources or sea routes which later results in sovereign warfare. It is a crucial geopolitical subject especially, for a developing country like India which is covered with water i.e. sea/ocean from three sides. Even Vasco-da-Gama is not famous for his profession as a trader but everybody knows him as an explorer who has discovered the oceanic route to India from Europe. This discovery was so crucial because it was a free way to trade & travel as there were no fixed sea laws as such at that time. However, time changed and the concept of Law of Seas was displayed as a structural pillar of International Law.
Understanding its exigency, the Law of Sea was codified by the United Nations which comprehended the importance of the world’s oceans/sea with the United Nations Convention on the Law of Sea (UNCLOS) signed in 1982. With this Law of Sea Treaty, different countries entered into international agreements for establishing a legal framework for all the sea related bilateral connections considering the maritime activities of the respective parties. Though these treaties have enshrined many of the ocean space related issues as these matters cannot be kept in a cold box. As its infringement/manipulation has happened numerous times, the best live example of the same is the regular dispute arising out of fisheries activities happening in between India and Sri Lanka.
Focusing on the momentous maritime security necessity of sea laws shall be the limelight in this discussion. Signifying its relevance, the emerging sea convention with its executive bodies/organization will be briefed along with a summary emphasizing India’s significance, being a peninsular country. After the overview of past and future situations with a predictive approach, the researcher will try to suggest the best possible strategy for safeguarding India’s interest. Extracting essence from the whole deliberation this article will conclude the topic with its brief understanding of this concerning subject matter elaborating needs/ requirements for improvising the current scenario.
Ineluctable importance of sea laws
As we all know, the major portion of the earth is covered by sea/oceans; its relevance cannot be denied in any case. Coastal borders are not only relevant for trade/transportation or natural habitat but it is also crucial for scientific research and technology development. More than that, the whole ecology system of the earth depends upon oceans as it actually regulates the climate. The above highlighted significant facts can help everyone realize the importance of sea laws. The aptness of the maritime regulations is even more for any country having coastal borders like India, Sri Lanka, Australia and Russia etc. For emphasizing the key points which necessarily require standard sea regulations they are discussed in detail as follows:
- Setting Coastal Limits:- Disputes over the control of the sea/oceans are not new at all, history is full of these examples where neighbouring countries have had conflicting claims over their coastal areas. Therefore, creating a fixed standard for delimiting the coastal area with a baseline is very important to avoid frequent disputes which can even lead to a war between the disputed regions.
- Navigation Rights: – From ancient times, the sea route was the vital mode of travel and trade, though airways have given a better substitute still sea navigation has not lost its importance.
- Exploitation Regime:- As sea/ocean is a pivotal resource that not only facilitates trade or travel but is an unknown treasure that has not even been fully uncovered till now. Thus, a strong structure of regulations for the same is very much important. With the strict regime, every continent/region can fix their limits and determine its scope of using this resource. The precise limitation can help in the following demarcation:-
- Exclusive Economic Zone– Before considering the oceans as a sea route for travel and business we need to understand how the coastal border plays a vital role in the survival of the populations living at that place. The sea has always been a source of food and various other jobs/activities which has a remarkable effect on the economy of the country;
- Continental Shelf – Fixing the area of the land undersea/ocean on the edge of a particular region is very much important as it can provide a sovereign right for exploiting this resource to the fullest without any hassles/interruption of other countries;
- Marine Scientific Research – Seas and Oceans provide the medium for growing industries such as deep seabed mining which involves extracting deposits of the seafloor and submerged minerals or even metals etc. If the jurisdiction is not fixed then there will be a continuous argument/quarrel for claiming authority on this asset.
- Universal Participation:- Discussion on marine regimes cannot be finished without ensuring the participation of maximum nations/continents/countries on which those regulations shall be applied. Hence, all the participants are bound to follow a fixed marine regime uniformly.
- Settlement of Disputes – Redressing grievances is an important part of any statutory framework. Human history is full of incidents that illustrate that the absence of uniform marine regulations leads to conflicts. Boundary disputes arising out of a gradual shift of the contours of water bodies is the best example of the same. Accordingly, in case any of the countries have some grievance, it should be taken up by the uniform dispute resolution team/body.
- Pioneer Investors: – After making a uniform standard marine regime with universal participation the next critical point is inputs required for the excavation of sea resources. Every search, discovery or development requires a huge amount of money which can be sponsored by some investors. Hence, the formulation of a commission or committee for making a standard framework for the investors who are interested in exploring marine life is also required.
- Protection of the Marine Environment – It is already being discussed that maritime life may exist only underwater but it affects the ecology of the entire planet. Therefore it is the fundamental obligation to preserve the marine environment and exploit this resource with that much responsibility that it harms this asset to the least. While stipulating marine rights the responsibility of its protection and safety should also be fixed. So, privileges and liabilities can go hand in hand and marine life can prolong in the future for our upcoming generation.
Incorporation of sea laws and their related institutions and forums
Considering the severity and necessity of a uniform structure for protecting the marine environment and the interest of peninsular regions, the United Nations (UN) has taken the initiative to lay down the structure for the regime of sea laws. After the Second World War, in 1948 the International Union for Conservation of Nature (IUCN) was created as an international observer in the UN General Assembly. Later on, relying on the basis of international customary rules, the Geneva Convention was established in 1958 which consists of mainly four treaties i.e. Convention on Territorial Sea & Contiguous Zone, 1958; Convention on the High Seas, 1958; Convention on Fishing & Convention of Living Resources of High Seas, 1958; Convention on the Continental Shelf, 1958 and Optional Protocol of Signature concerning Compulsory Settlement of Disputes, 1958. However, after twenty-four years, the UN incorporated another convention i.e. United Nations Convention on Law of the Sea (UNCLOS); codifying the above conventions. The UNCLOS was initially signed in 1982 and enforced in 1994 after all the ratifications. So that all the UN members can maintain peaceful relations with each other and also maintain the ecosystem of the sea & its continents in a comprehensive manner. In a broader sense, the UNCLOS covers more or less all the in and out aspects of sea life. The same can be understood with the following points:
- Sovereignty: – Countries/states can exercise their sovereign rights in their territorial sea up to the limit of 12 nautical miles without any restriction. Further, coastal regions have the liberty to exercise jurisdiction within its Exclusive Economic Zone (EEZ) up to 200 nautical miles; for extracting natural resources, doing marine research, enjoying traditional freedom and environment protection [Referred article- 77, 78, 87, 112, 115, 126, 125, 142, 193, 238].
- International Navigation:- All the countries are allowed to manage its straits and regulate international navigation including submarine cables etc. [Referred article- 34,26,41,43, 90,97, 233].
- Rights of Archipelagic Countries:- Group of related islands like; Bahamas, Fiji and Philippines etc. have sovereign rights to establish sea lanes/routes between and the outermost points of islands [Referred articles: 46 to 54].
- Rights of Land-locked Countries:- Regions that don’t have any coastal borders like Nepal, Bhutan, Ethiopia and Kazakhstan etc. shall get a fair chance to participate in enjoying sea routes and exploitation of sea ecology with its special protection [Referred articles: 69, 124 to 132, 254].
- Bordering Regions: – Besides the provided rights/privileges all the countries sharing borders are required to cooperate with each other while using the sea route or exploiting resources of sea life. The relevance of this liability can be better understood by the relation between India and Sri Lanka [Referred article 42, 44, 123].
- Marine Pollution:- All the states/countries are liable to prevent damage caused by violation of international obligations in any manner [Referred articles 43, 192 to 196, 199, 204, 207 to 222].
- Technology Development:- Likewise the above responsibility, the countries having developed marine technology are required to promote and share the same with other regions on the basis of fair/reasonable terms and conditions [Referred articles 144,196, 202 to 203, 266 to 269, 275 to 277]
- Dispute Resolution:- All the states/countries are required to resolve their marine disputes subjecting to the interpretation of convention applications [Referred articles 14, 22, 186 to 191, 264 to 265, 279 to 285]
Along with UNCLOS, different bodies were established which can act as an enforcement authority as well as redressal forums for rectifying any discrepancies occurring in its implementation. First is the International Tribunal for Law of the Sea (ITLOS) [dispute resolution mechanism]; second is International Seabed Authority [the intergovernmental body that regulates mineral-related activities beyond the limits of national jurisdictions] and third is the Commission on the Limits of the Continental Shelf [demarking the outer limits of the continental shelf]. Besides all the above agencies, in 1948 another body was incorporated for developing international regulations for improving marine safety i.e. Inter-Governmental Maritime Consultative Organization (IMCO). Later on, in 1982, it was renamed as International Maritime Organization (IMO) while UNCLOS replaced Geneva Conventions. Along with this, Indian Ocean Commission (IOC) was also established as an intergovernmental organization that works with a mission to fraternize the interests of its member countries and protect natural diversity.
Further, other UN institutions/bodies like International Council for the Exploration of the Sea (ICES), Division for Ocean Affairs and the Law of Sea (DOALOS), International Labour Organization (ILO), Food and Agriculture Organization (FAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), United Nations Industrial Development Organization (UNIDO), United Nations Development Programme (UNDP) and United Nations Environment Programme (UNEP) are regularly working for protecting the sea environment and settling path for settling sea disputes in harmonious way.
Implications pertain to India as a peninsular nation
As a founding member of the UN, India was always a part of all the initiatives taken by the UN in any manner. While developing a sea law convention, India has played a constructive active role and has been part of the same since 1995. Active participation in contemplation of this convention was very much crucial for India due to its three-way territorial borders covered with water which makes it a peninsular region. Specifically, India shares its maritime zone with a total of seven countries i.e. Bangladesh, Pakistan, Thailand, Myanmar, Indonesia, Sri Lank and Maldives. Being a peninsular nation India has to face continuous issues of overlapping liabilities and jurisdiction which required a central coordinating body with uniform provisions for governing sea disputes. For the same, using its sovereign powers, India has passed different statutes and even amended its constitution for complying with this subject matter. Legal enactments aligned with the sea laws can be summed up as below:
- Article 297:- By the 40th Amendment in the Indian Constitution, limits of territorial waters, continental shelf and EEZ along with other maritime zones like land or minerals etc. shall considering to be administered by the Union under any law made by the Parliament of India;
- Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976:- Along with the above-said amendment, the separate statute was enacted wherein rights and jurisdictions were specifically determined by the Central Government of India;
- Coast Guard Act, 1978:- With this statute, a body to enforce maritime law was established i.e. Indian Coast Guard (ICG) which work as a search and rescue agency within the jurisdiction over the territorial water of India including EEZ and contiguous zone which is the territorial sea up to 24 nautical miles;
- Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981:- This statue was introduced to end poaching (illegal fishing) activities and protect the natural resources of EEZ by fixing license system;
- Merchant Shipping Bill 2020:- Complying with different international conventions and indices like the ease of doing business of the World Bank, the government is planning to pass comprehensive legislation dealing with all the merchant shipping activities. This bill will replace two old statutes i.e. Merchant Shipping Act, 1958 and Coasting Vessels Act, 1838 with an objective to increase trade, protect the Indian coastline & its sea life, minimize marine pollution, enhance accountability and reduce unnecessary compliances for the trade.
Here it is pertinent to notice that even after the invention of airways, the maximum portion of trade is still done via sea route only, thus it comprises a significant portion of the Indian economy. Nonetheless, as every privilege comes with some liabilities, therefore, having boundaries connected with sea/ocean also has prominent pros and cons with any situation. Therefore, India has to keep an eye on each and every activity on the sea as India has been targeted by foreign entities via sea routes mainly. Historical data of disruption faced by Indian coastal territories will be discussed in the next part.
Past incidences : disputes faced by India being a peninsular nation
Apart from the landmark era of Vasco-da-Gama discovery and British arrival; India has faced a catena of infringement cases pertaining to their coastlines limits. There is no doubt regarding the fact that as a peninsular nation India has numerous benefits from the tremendous source of maritime resources which any land-lock nation misses out. However, flipping a coin can change the whole game as the Indian Ocean can be an easy target for foreign invasion or maybe a demographic interruption like Rohingya people coming from Burma (Myanmar). For understanding the severity of the concerned discussion, some latest international issues pertaining to UNCLOS implications can be explored which consequently affects India in more or less manner. Same is briefed as below:
- Freedom of navigation operation (FONOP):- Derived from a customary international principle i.e. ships flying the flag of a sovereign state. FONOP is a principle whereby ships with a sovereign flag are free to sail without any interference of other nations/states apart from an exception provided in the international law [Article 87 of UNCLOS]. Though the covid-19 pandemic is not yet ended, in April 2021 US Navy conducted FONOP in the Indian Ocean and entered into EEZ near Lakshadweep which is against the statutory provision of India’s Maritime Zone of India Act, 1976. This incident is the best example where developed countries are targeting developing countries to show their power and maximize their freedom of using & exploiting natural resources without bothering about other interests in EEZ nations. It is ironic that even now UNCLOS is a tradeoff between the developed and developing countries.
- China’s Sea Wing Glider Drone: Before the pandemic, at the start of 2019 Indonesia has tracked down four sea drones launched by the Chinese Navy i.e. People’s Liberation Army Navy (PLAN). Without resolving the said issues, China has again deployed another underwater drone glider in the Indian Ocean in December 2020 with a tag of naval intelligence purpose. This is reminiscent of the issue of the standoff at Ladakh which reflects the deadlock situation between India and China. Further, as per the study report of Asia Maritime Transparency Initiative China operated “by far the largest fleet of government research vessels” in Indo-Pacific Oceans. With this, it is clearly evident that enlarging the operational scope and geographical coverage by China will directly target/endanger the resources of the Indian Ocean and coastal borders of India.
- Enrica Lexie Mishappening: In 2012, an oil tanker “Enrica Lexie” from Italy was passing off the Kerala (India) coast whereby two Italian marines’ officers killed two Indian fishermen by firing warning shots. Consequently, the Italian oil tanker was detained by the Indian Navy. For releasing their citizens, Italy approached ITLOS in 2015 and this issue was heard by the Permanent Court of Arbitration in 2019. For closing the case, Italy was ready to pay compensation and submitted that Indian courts don’t have jurisdiction to try marine issues. In July 2020, the court accepted the submission made by Italy by recognizing ‘functional immunity’ as the Italian marines were engaged in the government of Italy mission. Further, it was held that India is not liable to compensate Italy for detaining their marine officials but Italy has to pay compensation to Indian deceased fishermen’s families. Accordingly, the amount of compensation was fixed with the mutual consent of both nations.
- Indo-Bangladesh Maritime Border Dispute: Even after settling the four decades older maritime border dispute between India and Bangladesh by ITLOS in 2014. Bangladesh is still raising formal objections before the UN Secretary-General questioning the baseline estimated by India. This issue turns out to be a grey area for Bangladesh in the same way India sees Pakistan Occupied Kashmir (POK).
Adding to the above glimpses there is ‘n’ number of cases wherein Indian marine rights are somehow affected. Having a long-standing history in dealing with sea disputes, most of the time India has been party to the international disputes as many ships sailed to India and from India. Thus, most of the sea laws and regulations have some direct or indirect interrelation with Indian maritime rights.
Foreseen possibilities : for and against strategy
Even before the era of Vasco-da-Gama India has always been a soft target for pirates and rich nations in the name of trade or exploitation of national resources due to its unique geographical position. Therefore, codification of marine/sea laws is of utmost relevance for any nation, especially those having territories adjacent to sea/ocean, just like India. Hence, India’s involvement in recognition of UNCLOS is inevitable and more than that required of a necessary convention for conserving maritime rights from developed nations with a uniform code of conduct. However, this was just a minor step for securing its position in the global centric era targeting its rights over the Indian Ocean. Being a developing nation, India is required to understand not just the virtues of UNCLOS but also its vices. Though, the UN is always lauded for its extraordinary efforts for uniting all the nations as a single entity. However, it indirectly gives most decision-making rights to developed nations only, which is the hidden truth behind any kind of assistance provided by a wealthy state. Hence, India should not wholly rely on the protection and support provided by UNCLOS for conserving its maritime rights over the Indian Ocean and protecting its coastal lines borders.
With the aforementioned vignette description, one can easily figure out the severity as well as the sensitivity of this subject matter. The Indian Ocean has always been the centre of attraction for the world with a tag of travel, trade and research etc. for the rich nations; even cases discussed previously also reflect the same situation. If India remains silent on US’ FONOP and China’s sea drone incidents, then this lack of reaction will surely boost their interest and no one should be surprised if China initiates a FONOP or the US launches a sea drone in the Indian Ocean. This situation also may give wrong signals to countries like Bangladesh and Sri Lanka which will definitely make things worse. Thus, it is preordained that India has a long way to go for justifying its authority over the Indian Ocean and its resources, which are necessary for its coastal border security. There is no doubt that the engine of growth and development can run only with a harmonious framework including multiple nations so India can’t discard the position of countries like North Korea. Accordingly, India is supposed to play safely while dealing with other countries’ disputes related to the cumulative exploitation of sea heritage.
Considering the above situation, India has to understand the utility of maritime reservoirs in monetary terms and focus on a ‘Blue Economy’ by gripping its dominance over its coastal lines. This could be the best chance as last year only; India was admitted as the fifth observer to IOC along with others viz. China, Malta, European Union and International Organization of La Francophonie (OIF). In addition to this, India should make efforts to minimize disparities between its statutory provisions and UNCLOS’s provisions. Further, India should also ponder on drafting a new national maritime policy codifying its holistic sovereign rights under UNCLOS. This could also assist to make a base for negotiating business and harmonious relationships with other adjacent countries. Since 2005, bi-annually coordinated patrols happening between India and Thailand with a title of CORPAT. In the same way, the appointment of an Indian national, Neeru Chadda, as president of the Seabed Dispute Chamber in October 2020 could also be used as a golden chance to show its predominant position in emerging maritime laws. Summing up; the Indian Prime Minister’s strategic goal to conserve maritime space and promote cooperation with a principle of Security and growth for all in the Region (SAGAR) is also commendable.
Giving the above pointers for ramification of maritime security of India’s and its code of conduct may possibly be considered as a fair attempt for complying due diligence for protecting its geo-political interest as a whole.
Sea/ocean has always been an asset for human beings. Humans have been exploring sea reservoirs right from their origin but till now even after developing so much technology we have not reached up to fifty per cent of the potential. Ergo sea/ocean actually still remains an unexplored world for us just like outer space. Intending on India’s maritime security, the outcome of the whole discussion evaluates the current position as a valley situation for India whereby an adjacent country i.e. China is constantly expanding its involvement in the Indian seas in the name of research or development. Though its concealed target is to indirectly conquer other states under their dominance which makes it very clear that Indian maritime security is actually at stake as its three ways are covered by the Indian Ocean, Bay of Bengal and the Arabian Sea. Considering the power and strength of China; no other country will intervene if China attacks India labelling its invasion of the Indian Ocean as surveillance operations etc. Further, India is already facing numerous maritime disputes with Sri Lanka and Bangladesh so keeping an eye on its coastal borders and maritime heritage is very much important.
Accordingly, for maintaining India’s esteem at the international level the requirement of a focused and compendious strategy has a lot of weight. All the efforts discussed in the preceding sub-title are suggestions against present and upcoming challenges coming before the sovereignty of Indian maritime rights. Concluding this discussion with clubbing the understanding of the whole discussion in one statement could be; for ‘securing maritime’ security India has to put all the efforts into it with an evolutionary approach and participate in the race of survival of the fittest.
- United Nations Convention on the Law of the Sea of 10 December 1982
Overview and full text [Page last updated: 11/02/2020]
- Maritime Laws in India by Sanchit Meena
- Law of the Sea by Robin R. Churchill on Britannica.com
- Law of the Sea: India’s Policy Options [Journal Article] by Prabhas C. Sinha
- Why India needs to strengthen its maritime laws and regulatory mechanisms by Aditya Manubarwala and Bhavyata Kapoor
- Decoding the laws that administer the Indian seas by Ayush Verma
- Law of the Sea: An Analysis of Contemporary Conflicts by Subodh Asthana Link: https://blog.ipleaders.in/sea-law/
- Merchant Shipping Bill 2020: a work in progress Link: https://www.hellenicshippingnews.com/merchant-shipping-bill-2020-a-work-in-progress/
- The Interrelation Between the Law of the Sea Convention and Customary International Law by Martin Lishexian Lee
- International Law and Order: The Indian Ocean and South China Sea by Caitlyn Antrim
- The Law of the Sea and the Indian Ocean by Shanti Wickremeratne
- UN Convention on the Law of the Sea (UNCLOS) Current Affairs, GK & News
- Freedom of Navigation Operations: A Mission for Unmanned Systems by Trevor Prouty Link: https://warontherocks.com/2021/07/freedom-of-navigation-operations-a-mission-for-unmanned-systems/
- Explained: Freedom of Navigation Operations, US’s 7th Fleet and India’s EEZ by Krishn Kaushik Link: https://indianexpress.com/article/explained/explained-indian-international-law-and-us-assertion-7266917/
- In rare move, US says it conducted Freedom of Navigation Operation in Indian waters by Abhishek Bhalla Link:https://www.indiatoday.in/india/story/rare-move-us-says-it-conducted-freedom-navigation-operation-indian-waters-1789060-2021-04-09
- Explained: Why China is Deploying Underwater Drones Near Indian Ocean Choke Points by Indian Defence News
- The ‘Enrica Lexie’ Incident (Italy v. India) Link: https://pca-cpa.org/en/cases/117/
- All you need to know about the Enrica Lexie case by Abhishek Kurian
- Maritime Disputes With India: Bangladesh asks UN to settle issues by Diplomatic Correspondent Link: https://www.thedailystar.net/news/bangladesh/news/maritime-disputes-india-bangladesh-asks-un-settle-issues-2182851
- The Indian Ocean as a Region of Future Contestation by Vijay Gokhale
- India’s focus on enhancing maritime security as the UNSC president: Leadership envisioning a global roadmap by Debasis Bhattacharya
- India, China, and differing conceptions of the maritime order by Iskander Rehman
- China widens presence in Indian Ocean through massive inroads in Djibouti by Dipanjan Roy Chaudhury Link: https://economictimes.indiatimes.com/news/defence/china-widens-presence-in-indian-ocean-through-massive-inroads-in-djibouti/articleshow/86676234.cms
- The UNCLOS Isn’t Perfect, and it’s Time We Acknowledge That by Achin Vanaik
- UNCLOS’s “Law of the Sea” at the heart of the UN Security Council consensus, China by Karanpatil Link: https://indianewsrepublic.com/uncloss-law-of-the-sea-at-the-heart-of-the-un-security-council-consensus-china/411570
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