This article is written by Shiwangi Singh, a law student from Banasthali University. This article talks about various conventions that were formed globally to administer the proper usage of marine resources. It mainly talks about the United Nations Convention on the law of the sea and its important initiative in the form of International Tribunal for the Law of the Sea.

It has been published by Rachit Garg.

Introduction

Life itself arose from the oceans. The ocean is vast and covers 140 million square miles, which is about 72 percent of the earth’s surface. It has a key role in maintaining the balance of life on earth. It is home to many resources like diamonds, silver, gold, metal ores like manganese nodules, oil, and many more. It also gives a huge platform to the coastal countries to earn profits through shipping goods and fishing, which play a huge role in boosting the economies of several countries.

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This extensive amount of resources often creates tension among the coastal nations claiming their rights towards access to these resources. The nations use the oceans not just for accessing these natural resources but also use them as water passage for their national trading, which creates conflicts between the nations as every nation wants to fulfil its economic demands by controlling large parts of the sea. Therefore, these two reasons have stimulated the legal rules for the sea.

In order to avoid such conflicts and maintain the ‘status quo’ among the nations, the United Nations Convention on the Law of the Sea in 1982 laid down a comprehensive system for the settlement of sea disputes. It formed a special body under this convention called the International Tribunal for the Law of the Seas (ITLOS) to deal with the issues arising from the sea areas of the countries.

United Nations Convention on the Law of the Sea (UNCLOS)

The United Nations Convention on the Law of the Sea (UNCLOS) is an organisation at an international level that-

  1. formulates guidelines for suitable business occurring overseas, 
  2. ensures that the environment around the oceans is not destroyed for the nation’s own sake, and 
  3. talks about the management of marine natural resources.

UNCLOS, also known as the Law of the Sea Convention or the Law of the Sea Treaty, states the rights and responsibilities that a nation holds towards the use of the world’s oceans. It believes that all the oceans of the world, located in different geographical areas, are closely related and they need to be addressed as a whole. This 1982 Convention was signed by 177 states but it came into force internationally on 16th November 1994.

It provides the backbone for offshore governance by coastal states and the areas that navigate the oceans. It divides all the maritime areas into the following zones, providing each of them with different legal status – 

Baseline

  • The low water line along the shore is known as the baseline. It is the line along the coast from which other maritime zones of jurisdiction are measured.

Internal waters

  • The ships that are entering the internal waters of a country should follow the law of that coastal or port state, known as Port State Control. It is the inspection of foreign ships at national ports to verify whether the condition of the ship and its equipment is according to the requirements of international conventions, and also whether the human crew in the ship is operating with the rules or not.
  • Internal waters comprise all water and waterways which are lying towards the landward side of the baseline from which a nation’s territorial waters are measured.
  • The coastal nation is free to formulate any law for the use of internal waters and the resources obtained from them.
  • There is no interference from foreign countries.
  • Foreign ships have no right to enter the internal waters of a nation.

Archipelagic waters

  • The archipelagic waters include the main islands surrounding the coastal nation.
  • If a country is an archipelago, or if it has an archipelago under it then the baseline is considered between the outermost points of the islands, if the islands are close to each other.
  • The country has full control over archipelagic water just like the internal waters.
  • Archipelagic baseline may exceed 100 nautical miles in length; it should enclose an area of the sea that is at least as large as the area of land enclosed by it, but it should not be more than nine times that of the land area.
  • Foreign ships are allowed for innocent passage through archipelagic waters.

Innocent passage – A passage is considered innocent as long as the movement of a foreign ship in the specific area is not detrimental or harmful to the nation’s peace, security, and law and order of that coastal state.

Territorial sea

  • It extends up to 12 nautical miles from the baseline, where no right of overflight is allowed.
  • The nation is free to use its resources and formulate laws and regulations as per its requirements.
  • Foreign vessels are not allowed to pass through this area unless it is an ‘innocent passage’, but it is up to that particular nation if they wish to suspend the innocent passage.
  • Whenever a submarine is passing through other countries’ territorial waters, it is mandatory for them to navigate on the surface by showing their flags.
  • The sovereignty of a coastal state comprises the airspace over the territorial sea as well as the sea bed and subsoil situated below the sea of that particular region.

Contiguous zone

  • It encloses an area of 12 nautical miles beyond the territorial waters, which implies that it is located at a distance of 24 nautical miles from the baseline limit.
  • The country is allowed to formulate laws only on four areas in this territory, which is regarding- pollution caused by ships or submarines, taxes paid by ships and submarines, customs, and immigration.

Exclusive economic zones

  • It includes the area from the edge of the territorial sea up to 200 nautical miles from the baseline.
  • The country has exclusive rights for the usage of all kinds of resources in this area. It resolved the clashes over fishing rights and oil rights.
  • Foreign ships and flights can pass through this area with proper navigation and would be subject to the regulations of the coastal areas.
  • Foreign states are allowed to lay submarine pipes and cables.

Continental shelf

  • It comprises the submerged extended part of the landmass of the coastal state, which also includes the sea bottom and subsoil of the submarine area that extends beyond the territorial sea.
  • The state has exclusive sovereign rights over exploring and exploiting the natural resources of this area. It can harvest non-living materials and minerals in the subsoil of its continental shelf.
  • It does not include the deep ocean floor that also includes oceanic ridges or its subsoil.

High seas

  • These areas are reserved for peaceful purposes, and all the states, whether they are situated on the coastline or are land-locked, are allowed to sail their ships flying their flag on the high seas.
  • No nation can say that it has full sovereignty over the high seas.

Historical background and formation of UNCLOS

The law of the sea was formulated to resolve the struggle between the coastal areas, which sought to tirelessly expand their control over the marine areas that are located close to their coastal landmasses. By the end of the 18th century, it was taken into consideration that states had the right to exercise their power over their territorial sea.

After the Second World War, several nations urged that the United Nations International Law Commission should codify as well as introduce new laws related to the regulation of the oceans. The commission took it under notice and began working in 1949. It prepared four draft conventions, which were adopted at the first UN Conference on the Law of the Sea.

The First United Nations Conference on the law of the sea (UNCLOS 1)

It was held from February 24 to April 29, 1958. In this conference, four conventions were adopted, commonly known as the 1958 Geneva Conventions, which were – 

  • The Convention on the Territorial Sea and Contiguous Zone (CTS),
  • The Convention on the High Seas (CHS),
  • The Convention on the Continental Shelf (CCS), and
  • The Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR).

It did not fix the measurements of the territorial sea.

The Second United Nations Conference on the Law of the Sea (UNCLOS II)

It was held from March 17 to April 26, 1960. Unfortunately, no discussions at this conference resulted in any international agreements. The conference once again failed to fix uniform measurements for the territorial sea and also could not decide anything regarding the freedom of fishing rights.

The Third United Nations Conference on the Law of the Sea (UNCLOS III)

The third session of the United Nations Conference on the Law of the Sea, which was held between 1973 to 1982 led to the formation of the current convention known as UNCLOS. The quad-treaty of 1958, also known as the Convention on the High Seas, was replaced by UNCLOS after the Convention, which ended in the year 1982.

The older concept of 17th-century known as ‘freedom of the seas’ where the nations could conduct their waterways business up to a specified belt of water extended usually up to 3 nautical miles (a unit used in measuring distances at sea, which equals to 1,852 metres) from nation coastlines was replaced by the formation of UNCLOS. Therefore, the portion of water that was beyond the national boundaries was considered international waters. Later in the 20th century, many nations addressed the fact that they needed to extend their access to water areas, including for mineral resources, the protection of fish stocks, and the supply of resources.

In 1945, President of the United States Harry S. Truman expanded their control over all the natural resources that were obtained from the country’s continental shelf. From 1946-1950, seeing this claim of power, three more nations, namely – Ecuador, Chile, and Peru, also extended their control up to a distance of 370 kilometres to cover their Humboldt Current fishing grounds, whereas, the other nations extended their territorial seas up to 22 kilometres.

This Convention addressed all the issues that were not resolved by the previous conferences. It also mentioned the definitions of all maritime zones and also made provisions for the passage of ships, protection of the marine environment, freedom of scientific research, and exploitation of resources.

Objectives of United Nations Convention on the Law of the Sea 

  • It works towards maintaining a peaceful use of the seas and oceans.
  • It facilitates International Communications between different nations located in different geographical locations.
  • It ensures each nation is using the marine resources in an appropriate amount and not exploiting it vigorously. It promotes the efficient usage of ocean resources.
  • It keeps a check on the environment around the oceans and works towards protecting it.
  • It ensures maritime safety by ensuring that no political or any other kind of cause should harm the work of any nation.
  • It mentions the ocean area and the resources obtained from it as ‘the common heritage of mankind’, therefore it administers the resources of the area.
  • It promotes peaceful use of the seas and oceans and works towards the preservation of the marine environment.
  • It gives the right to states to enact legislation concerning the safety of navigation, pollution control, extensive fishing activities, customs, immigration and health, and sanitary arrangements.
  • It ensures criminal jurisdiction for the countries that find any foreign ships floating in their territorial seas.

Initiatives under United Nations Convention on the Law of the Sea 

Several other initiatives were also taken after the establishment of the United Nations Conference on the Law of the Sea, among which the most important was the establishment of – 

  • International Tribunal for the Law of the Sea (ITLOS).
  • International Seabed Authority – The ISA was formed to organise, regulate, and control all the mineral-related activities in the international seabed area that are beyond the limits of national jurisdiction. It looks after all sorts of work related to deep seabed mining, such as the level of environmental pollution caused by it, level of exploitation and exploration of the resources. It is also related to scientific research programs and conducts workshops, seminars, and conferences on the scientific and technical aspects.

International Tribunal for the Law of the Sea (ITLOS)

This is an independent judicial body set up by UNCLOS. Its main function is to look after and resolve the disputes arising among the nations. It is a multi-governmental organisation formed after an official order was passed at the third UN Conference on the Law of the Sea. The United Nations Convention on the Law of the Sea was opened for participation from all the countries at Montego Bay, Jamaica on 10 December 1982. It came into operation after 12 years on 16 November 1994.

Members of the International Tribunal for the Law of the Sea

This tribunal consists of 21 independent members elected by secret ballot by the state parties to the convention. They are elected from among the members who have immense knowledge and ability to resolve matters related to the law of the sea. Each state party may nominate up to two candidates who have the ability to deal with cases on the law of the sea. The two members shall not belong to the same state, in order to maintain equal geographical distribution. There shall be no less than three members from each geographical group as established by the General Assembly of the United Nations.

Jurisdiction of ITLOS

  • The tribunal has jurisdiction over any dispute that requires concern over or interpretation of any rule laid down by the UNCLOS. Its function is to work in sync with the Convention.
  • The tribunal has power over the states and international organisations that are already members of the convention UNCLOS. It also has a hold over the parties who are not its members, like inter-governmental organisations and private entities.

Election of its judges

  • The judges of the tribunal are elected by the members of the Convention. Every three years in New York, an election takes place as one-third of judges of the tribunal expire from their respective positions.
  • Candidates must be nominated by the state parties and should receive a two-third majority of the votes to be elected as judges of the tribunal.
  • There are a total of 21 judges present in the tribunal who are elected for a term of nine years and may be re-elected.
  • Every three years, the term of one-third of the members expires.

Functions of ITLOS

  • It works to protect and safeguard the ocean resources and the different types of species residing in the ocean.
  • It also helps to promote and leverage scientific research for the development of marine technologies.
  • It states provisions related to different maritime zones – territorial occupancies of seas, continental shelf, and exclusive economic zones.

International Tribunal for the Law of the Sea (ITLOS) and India

India has been a member of this Convention since 1995 and has played many roles leading to UNCLOS’s adoption in 1982.

  • The first Indian woman who won the election of the International Tribunal for the Law of the Sea (ITLOS) was Ms. Neeru Chadha. She is also a renowned lawyer who became the chief legal advisor in the Ministry of External Affairs. She held the office in 2017 and would continue for a nine-year term up to 2026.

Enrica Lexie case (2012)

Brief Facts

  • This case started when, on February 15, two Indian fishermen were shot dead by Italian Marine Sergeants, namely- Salvatore Girone and Massimiliano Latorre. Those fishermen were returning from the Lakshadweep islands and were 20 miles off the coast of Kerala when this incident happened. Soon after, the Indian Coast Guards stopped the Italian tanker and arrested Girone and Latorre.
  • The legal proceeding in this case was started in Kerala, where Kerala police officials registered murder charges against them. After this, the case was transferred to the National Investigating Agency (NIA), which registered a case under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), which works to protect against international terrorism.
  • The Italian officials argued and stated that they had taken this extreme step because they thought those fishermen were pirates and that their fishing vessel appeared to be in collision with their tanker named- the MV Enrica Lexie, and they were trying to protect their tanker. They argued by stating that the fishing vessel continued to head towards the tanker despite their continuous auditory and visual warnings.

Issue

  • India argued that it had jurisdiction over this case as the two fishermen were killed without warning who were just 20.5 nautical miles from the Indian coast, which is a part of India’s exclusive economic zone, while the Italian Government mentioned that the Indian Government is not authorised to try the case.

Judgement

  • On February 7, 2014, the charges of murder against the Italian officials were downgraded to violence, which implies that if they get convicted, they would not be punished with the death penalty. On March 7, 2014, India dropped the charges filed by the SUA against the marine officials.
  • On August 24, 2015, ITLOS directed that both countries should stop all the legal proceedings in their courts and asked them not to start any new proceedings that might worsen or jeopardise the proceedings of the arbitral tribunal.
  • After this, the Supreme Court stopped all the proceedings against the two Italian officials, and the matter was finally referred to the Permanent Court of Arbitration in July 2019.
  • In May 2020, the Permanent Court of Arbitration ordered that this case would not be tried in India and would undergo criminal proceedings in Italy. The Court in Hague, further stated that New Delhi was entitled to compensation and asked India and Italy to decide on the amount of payment required.
  • On June 15, 2021, after almost 10 years of trial and national and international dispute processes, the Supreme Court of India quashed the pending criminal proceeding against the two Italian officials, who were charged with the murder of two Indian fishermen, whom they shot to death, at the coast of Kerala in 2012.

The Indian Court agreed to drop the proceedings only on the condition that both the Italian officials would be tried before the domestic courts in Italy and also because a total amount of Rs. 10 crore was deposited by the Italian Government. Out of this 10 crore, 4 crore each was given to the heirs of those two fishermen who were killed, and Rs. 2 crore was given to the owner of the fishing ship.

The Permanent Court of Arbitration (PCA) tribunal awarded this compensation to India by stating that the loss of life, physical harm, damage to the ship, and moral harm suffered by the captain and its crew members cannot be restored.

South China sea dispute (2022)

The South China Sea is a part of the western Pacific Ocean in Southeast Asia. It is located to the south of China, east and south of Vietnam, west of the Philippines, and north of the island of Borneo.

  • Recently, China warned off a US warship that was said to be sailing in its territory near the Paracel Islands in the South China Sea.
  • China usually claims that almost the whole area of the sea lies under its territory, including the Paracel Islands, but many other countries also claim their parts, like Taiwan, the Philippines, Brunei, Malaysia, and Vietnam. The point of contention is over the claim of rights over the regions of the sea because they are said to contain valuable oil and gas deposits.
  • China recently accused the US warship that was sailing in China’s Xisha (Paracel) island’s territorial waters without taking any consent from the Chinese government and the alleged USA of grievously violating China’s sovereignty and also disrupting the regional peace of that area.
  • The USA has argued that it broke no international law and was acting accordingly, and has defended its right of passage through the region.

India’s view on the South China sea dispute

India has stated that it is not a part of the South China Sea dispute and would not try to support any of the nations but only safeguard its economic interests regarding energy security needs. However, China’s growing ability to expand its control over the South China Sea has compelled India to rethink its decision and show an appropriate approach to this issue. India is trying to maintain its strong relationship with the Southeast Asian region. India has sent its navy with Vietnam in the South China Sea for the protection of sea lanes of communication, denying China any space for assertion.

Conclusion

These two global organisations, UNCLOS and ITLOS, indeed play a major role in preserving marine resources and maintaining the environmental conditions of the ocean. It not only safeguards but also promotes peace among the nation by resolving their disputes over jurisdiction. The disputes like the Enrica Lexie case which extended for such long years grabbed a lot of attention from national courts as well as the international courts, and finally was resolved by taking into consideration the facts of the case by the tribunal. The tribunal has been fulfilling its objectives since its formation and tries to maintain international peace. The South China Sea also grabbed a lot of attention in recent times as it is shared by many south-east Asian countries. This dispute led to the development of tension between the USA and China. In such cases where tension arises between two mega powers, one seeks the attention of the tribunal so that the issue of jurisdiction or any other matter gets resolved without harming international peace and security.

Frequently Asked Questions

Is the tribunal a part of the United Nations?

The tribunal is an independent body of judicial order, but it maintains close links with the United Nations, and both have entered into an agreement to cooperate and maintain a relationship to look over matters concerned globally related to the laws of the sea.

What did UNCLOS replace?

It replaced the four Geneva Conventions of April 1958, which were concerned with the territorial sea, the contiguous zone, the continental shelf, the high seas, and the conservation of living resources on the high seas.

What are the countries with whom India shares its maritime boundaries?

India shares its maritime boundaries with seven countries, namely – Sri Lanka, Maldives, Indonesia, Bangladesh, Myanmar, Thailand, and Pakistan.

Which are the countries that border the South China sea?

The South China Sea is bordered by the People’s Republic of China, the Republic of China (Taiwan), the Philippines, Malaysia, Brunei, Indonesia, Singapore, and Vietnam.

References

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