This article is written by Abhinav Anand, a student pursuing B.A. LL.B (Hons.) from DSNLU, Visakhapatnam. This article deals with issues in the national jurisdiction and beyond the national jurisdiction. It also examines various facets related to the areas beyond national jurisdiction and suggests ways to improve the existing condition.

Introduction

In recent times, we have seen a mass rise in the incidents on high seas and the places where the applicability of laws are weak or absent. The area beyond national jurisdiction has become a bone for contention and place of exploitation for many countries. The existing biodiversity is maltreated and resources are arbitrarily used.

This article deals with the issues faced in the areas beyond national jurisdiction. It also examines the importance of those areas and suggests measures that can be taken to improve the state of affairs in them. 

What are the issues?

Two-thirds of the world ocean is beyond national jurisdiction where no single state has authority. Areas beyond national jurisdiction are home to significant biodiversity. There are different aquatic species, flora and fauna present in those areas. They have the capacity to survive in the worst climatic conditions. Less than 0.0001% of these are explored, but the evidence says that due to the relentless material development of human beings, the quality of these areas has tremendously degraded.

The absence of any global framework which specifically protects and conserves the rich diversity of these areas has made the situation even worse. The melting of glaciers, increase in the pollution level of sea waters, relentless waste disposal are some of the examples because of which the quality and quantity of the flora and fauna is diminishing. Environmentalists, conservationists and others have pointed out the pitfalls in the system because of which mass-scale pollution is happening.

The people interested in the protection of such areas are not allowed to enter by imposing different kinds of restrictions. The depletion in the level of freshwater on the earth is also one such example of how the quality of natural resources has depleted. The advocates of human rights have also taken this issue intermittently on the international platforms but nothing exemplary has been implemented yet.

The United Nation Convention on Law of the Seas provides for the protection of the marine environment. But it failed to provide any mechanism that should be followed for the protection of these areas.

Why is it important?

These are the following reasons which makes it significant to protect the area beyond national jurisdiction:

1. Swift action needs to be taken because the oceans will soon deplete abysmally and they will fail to provide resources necessary for human survival.
2. The overfishing activities in the oceans disrupt the marine ecosystem.
3. The overburdened industrial activities such as oil tilling have also made the situation worse.
4. The sound of ships and other such vessels has forced the marine animals to shift to unfavourable places where they may not survive.
5. The enhancement of marine debris has led to innumerous deaths of the marine animals. They get entangled in the debris and subsequently die. In some instances, they consume the non-biodegradable wastes and die afterwards.
6. The rampant abuse of the environment has led to an increase in the temperature which has consequently increased the carbon dioxide, increasing the death of marine animals.

What can be done?

The new agreement in United Nation Convention on Law of Seas can protect the biodiversity in the area beyond national jurisdiction by following ways:

• A network of marine protected area

The agreement could provide a global and integrated marine protected area. These areas should be set aside for long term conservation of marine life. Human activities should be banned in these areas. A proper flowchart should be made as to how they can judiciously utilise the resources of that area.

• Equitable sharing of benefits from marine genetic sources

The agreement should focus on collaboration with scientists, experts, and governments. The concerned person should be informed about the benefits of marine genetic resources so that people will show interest in developing such technologies. The countries and the United Nation should provide adequate funds in the development of marine genetic technology so that the development will be rapid. The kind of innovation that can be brought to enhance sustainable development will be completed by marine genetic technology.

• Standards of Environmental Impact Assessments

The standard of environmental impact assessment and strategic impact assessment will help to analyse the existing problems and predict the prospective consequences. The consistent monitoring, guarding and assessment report will help to measure the entire situation with precision. The adequate measurement will help to analyse different kinds of improvement and will also help to remove the pitfalls in the allied processes. The standard of measurement will be enhanced after a period of time. The better inclusion of other innovative technology can be made on the basis of evaluation. It will also generate employment for the people involved in the concerned mechanism and will also address the concern of the economy and other allied sectors. The global improvement in the environmental standard will be the consequence after completion of such works.

• Capacity building and technology transfer

The technology transfer will help in effective implementation of the programmes for biodiversity protection. It will also help in better management of different areas simultaneously. It will boost the capacity at the same time so that in any unforeseen circumstances, people can react amicably and reduce the danger. The technology transfer will help to adopt effective methods in biodiversity protection. It will also pave the way for research and development in a world wherein the scientist will be in quest of making technologies that can help in mitigating the hardships. The less time-consuming technologies will help in expediting the procedure of cleaning the marine environment and protecting biodiversity.

Relevant Laws

United Nations Convention on the Law of Seas

The United Nations Convention on the Law of Seas is the milestone that is implemented to regulate the issues and state of affairs in the ocean. It is often considered as the constitution of the ocean. It regulates the general framework for the ocean and their use. It categorically decides the jurisdiction of the states over the part of the ocean. It creates the rights and obligations of the states over a particular area. It divides the state into different maritime zones. It further makes the rules and laws applicable according to the provisions laid down in the conventions. It obligates the state to protect the marine environment and takes innovative measures to protect and preserve the marine ecosystem. It also obligates the states to maintain the stability of the endangered species and reduce the pollution level in the ocean and also protect it from depletion. The state must cooperate at the global and regional level to and participate in the making of rules, regulations and guidelines for the effective implementation of objectives of the convention by taking the regional factor into account. It also focuses on the dispute settlement of the states. The states which are signatory to the convention have to solve the dispute amicably. If there is any escalation pertaining to sea they are obligated to come to the committee of the convention, then the decision will be given by the dispute resolving committee established under the convention. 

High seas 

The area that lies beyond the coastal areas is under the ambit of the high seas. Any state can act in that area. The freedom of the high seas is the cornerstone of the law that has been existing since the 17th century. The fundamental principle in these areas is that every state is provided certain basic rights. These are the following rights that can be exercised by all state while in the high seas:

1. Freedom of navigation;
2. Freedom of overflight;
3. Freedom of laying submarines and cable pipelines;
4. Freedom to construct artificial islands and other installations provided under International Law;
5. Freedom to fishing subject to the reasonable restrictions; and
6. Freedom of scientific research.

The key principle of the high seas is that the flag state that is the state in which the vessel is flagged has the exclusive right to govern the operations per Section 87(1) of the convention. It is the duty of the flag state to put rules and regulations in this area and allow the operations of the seas. No coastal states have any rights over the ship or national or other states when they are operating on the high seas.

Port State Jurisdiction

The Port also exercises exclusive jurisdiction on the ships visiting their ports. The Port State has to ensure that the ship visiting their ports must meet the international standards, if not then they have the authority to detain that ship. The port state has the exclusive right to take action against the ship if it violates the discharge standards even in the area beyond national jurisdiction.

The port states have broad power of imposing different sanctions on the ships entering their regimes or their terrestrial jurisdictions. The ships will be governed by the terrestrial sovereignty of the state.

The extent to which the ship extends their jurisdiction in relation to the conduct of ship is more uncertain because the ship may be held accountable for discharging more wastes even when beyond the jurisdiction of the port state.

The agreement is the consequences of the conflict between the states that are fishing on the transboundary rivers.

The 1995 Fish Stock Agreements

The Fish Stock Agreement was one of the concrete developments in the Rio conference of environment and development in 1992. The agreement deals with straddling and highly migratory fish stock in the high seas. The objective of the Fish Stock Agreement is the conservation and protection of highly migratory fish stock. The FSA develops the obligations of UNCLOS by introducing new principles such as the precautionary approach and protection of marine biodiversity. It specifies the obligations of flag states and regional schemes for enforcement.

The main elements of the Fish Stock Agreements consist of:

1. New conservation and principle management.
2. Strengthening the role of RFMO.
3. Specifying the duties of the flag states.
4. Requirements of the developing states. 

Relevant Case Laws

Federal Republic of Germany vs. Denmark and Netherland

In this case, there were two bilateral agreements between the Republic of Germany and Denmark and the Republic of Germany and the Netherlands under which a short line was drawn to mark the coastal boundaries of both states, that is equidistant from the land boundary of the states. Further, the agreement of delimitation of the portion in the North Sea seems impossible. So, they approached the International Court of Justice, where the major question was which principle of international law shall be applicable in the situation. The court decided the matter on the basis of equitable principle and the matter went in favour of Denmark and Netherlands.

UK vs. France

In this case, after long attempts over 10 years, the United Kingdom and France failed to determine the area of their continental shelf. The matter was decided by the International Court of Justice on the basis of the Principle of Equity. The Court stated that it is not mandatory to apply the principle of equidistance under Article 6 of the Geneva Convention.

Pitfalls in the Existing Laws

These are the following areas that need to be relooked into for better implementation of the existing laws:

• Absence of rules

Regulatory gaps refer to the matter that is completely unregulated. The jurisdiction has been specifically mentioned about the flag states; they can even exercise their jurisdiction in the Area Beyond National Jurisdiction. The jurisdictional void has been encountered for the state when it comes to exercise its power in any matter related to Area beyond Jurisdiction.

• Inadequate rules

There are  number of jurisdictional inadequacies that have been encountered in the existing laws. So, the absence of any regulation relating to the fish activities in high seas is one such inadequacy.

• Rules are not in force and not widely ratified

Regulations may not have an impact because they are not applied in their true letter and spirit. The lack of implementation and ratification has also rendered the rules inadequate in the present circumstances.

• Rules are not implemented and enforced

Regulatory gaps may arise when the existing rules are not implemented and enforced. There are examples when the garbage stemming from the industries is casually discharged into the ocean even after clear and specific rules bar such activities.

• Institutional gaps

The regulatory gaps also exist because of the institutional gaps. The absence of the regional institution with specified multi-species fisheries management has also led to the mismanagement in many instances.

• Good governance

The final lack is in the adoption of any modern principles in the management of the state of affairs of areas beyond national jurisdiction and their inconsistent application. A series of systems are implemented for better functioning of the existing system such as a good ecosystem, participatory management system and the implementation of innovative techniques. But, the entire system has been misunderstood several times and the laws are not applied in its true letter and spirit.

Conclusion

The recent development in technology has prompted different nations to devise new regulation for the areas which are beyond their jurisdiction. We need a robust legal framework for the areas beyond the jurisdiction of the state. These areas may become the point of dispute among nations for different reasons.

References

• https://www.iucn.org/sites/dev/files/issues_brief_governing_areas_beyond_national_jurisdiction.pdf
• https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
• https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

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