This article has been written by Dr. Harinder Singh pursuing a Training Program to Crack the Independent Directors’ Exam course from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Introduction

India…..stands for free, open and inclusive Indo Pacific Region (IPR) which embraces all in a common pursuit of progress and prosperity… supports a rule based, open balanced and stable environment, which lifts up all nations on the tide of trade and investment….. without returning to the age of  great power rivalry and with competition not turning into rivalry.

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–   Narendra Modi,Shangri  La dialogue on 2018

Maritime operations extend from hinterland national waterways to international seas and oceans. In view of their international nature, the governance of maritime affairs needs to be undertaken globally. Apropos, the United Nations (UN) has promulgated a comprehensive set of rules and regulations as a set of International Maritime Law (ML), which is called the United Nations Laws of the Seas (UNCLOS). Negotiations, disputes and decisions on issues related to territorial waters (TW), contiguous zones (CZ), exclusive economic zones (EEZ), high seas, international straits, archipelagic waters, seabed and subsoil, maritime boundaries, maritime trade practices, environmental protection and maritime security are all addressed in specific IML courts and tribunals.

Out of the specific IML courts and tribunals, the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) under UNCLOS serve as major independent maritime judiciaries that offer  a platform for nations to bring their disputes to a legal forum. UNCLOS, through its rule-based order, seeks to promote peace, security and cooperation among maritime nations. It is the primary legal governing document of reference for disputes in this domain and highlights the rights, responsibilities and  roles of states/ non-state actors at sea, modus of fostering foreign cooperation, and lays down regulations with respect to environmental conservation and sustainability.

Global  Locus Standing  of  Maritime Law (ML)

India’s candid support for the ‘rule based maritime order’  has been clearly depicted by its Hon’ble PM above and India displayed its humility and resolve by complying with the judgement of the International Court of Justice’s (ICJ) on the Indo-Bangladesh maritime dispute case acquiescently, and without adieu. The applicability of international maritime rule based order has been supported globally by maritime nations, ‘though equivocally with caveats by some’. The G7, G20, QUAD and BRICS nations, which comprise the world’s major economies and military powers, uphold the concept of multilateralism, share a common vision of reinforcing a ‘free and open rule based international maritime order’, and emphasise maritime economic conflict resolution, protection of maritime resources, freedom of navigation operations (FONOPS), maritime security and transnational crimes at sea. However, there are many ‘slip twixt cup and lip’ when it comes to enforcing IML/ UNCLOS.

China seldom refrains from using tools of statecraft-manship to gain control of strategic waterways. The Middle Kingdom’s draconian naval interventions in international waters, which are in contravention of the established rule based order,  often undermine IML’s implacability and efficacy. The USA, while consistently advocating the importance of ‘open and rule based international maritime order in international forums’, (US) is not a signatory to the UNCLOS. Is Uncle Sam not being slippery Sam? Aren’t Xi JInping’s ‘historical sovereignty lineage claims’ in the South China Sea (SCS), North China Sea (NCS) and IPR a bit too far fetched? Who will bell the dragon, especially with its intentions clearly indicating economic gains at the cost of your neighbours? Who will curtail its expansionist policy?

Enforcing maritime law is like herding fish—slippery and unpredictable. Strategic rivalry, confrontational competitiveness, balance of power precariousness, ideology of power shift from West to East, strategic autonomy of choices, Indo-Pacific regionalism and free & open maritime order complexities had added to its implementation woes. With the United Nation’s compelled compass pointing towards `economic might and military bureaucracy’, maritime jurisprudence considerations get affected. Also, UNO’s ‘vintage organisational structure overtones’ add to prolonged judicial delay. Therefore, many reforms are needed and there are miles to go in this legit nautical domain.

Genesis of International Maritime Law (ML)  

The laws in the complex realm of seafaring, intertwined by ancient rules, have helped churn a tapestry of international regulations that have stood the test of time. From the Mediterranean Law via Rhodian Sea Law  et al. to UNCLOS, the evolution of these legal doctrines mirrors the ebb and tide of human civilization and its quest to harness the boundless expanse of the oceans. Let’s make inroads to how we reached UNCLOS over the years in subsequent paragraphs.

Perceived origin : tyre, phoenician mediterranean maritime law

While exploring the annals of maritime law, I could not find a ‘single first proponent’ of maritime law (ML); however, its genesis can be traced back from 1550 BCE to 700 BCE, when Phoenicians, (also called Purple People or Can’ani (Canaanites)) built an ancient maritime civilization along the Mediterranean. They carried trade from Tyre (the main island and port city), Sidon and Bybios (all in present day Lebanon) across the Mediterranean Sea via interior waterways to the Red Sea and the mid-Atlantic coast up to the West Coast of Africa, well before the Greeks and Romans established maritime trade connections with them. These Mediterranean towns had special tribunals that addressed seafarer’s disputes in accordance with the Mediterranean Maritime Laws (MMLs). Their political structure supported trade and trade centric foreign policy drafted by an economically savvy merchant class.

Roman laws and Rhodian sea laws

Subsequently, the Egyptians, Greeks and Romans established trade with the Phoenicians and subsequently conquered them in different periods. The Greeks and Romans were all in praise of the Mediterranean Maritime Law (MML) tribunals and ship industry advancements of the Phoenicians. The Romans drafted their laws. The MMLs were amended to include Roman Laws prior to leaving. Subsequently, a few treaties between the three (Romans, Greeks and Phoenicians) got included, and were called Rhodian Sea Laws (RSL) (around 600 to 800 BCE) as they originated from the island of Rhodes (a part of Greece) in the Mediterranean Sea.

RSL maritime code matured with time and by 600 AD. In  addition to regulating commercial trade and navigation in the Mediterranean, it also influenced the whole of the Byzantine Empire region, regulated the maritime law in mediaeval Italian cities, laid down regulations with respect to shipwrecks, salvage, and piracy, and included the ‘concept of general averages – ‘liability for the cost of lost or damaged goods’: a practice where all parties involved (shipowners, traders, passengers and non-state organisations) shared the losses in a venture proportionately. Losses were caused by rampant storms, throwing overboard to save the ships, and piracy (by Arab and Slavic pirates). The law became a kind of insurance, dividing the cost of the losses between the shipowner, cargo owners and  passengers. However, RSL  persisted—whether influential or not in actual practice is debatable – through the 12th century (1101 to 1200 AD) and as the Byzantine maritime commerce diminished gradually in size, amount and strength from 1200 to 1400 AD ( 13th century and beyond), it became obsolete.

French Rolls of Oleron

The Laws of Oleron originated on the island of Oleron in the Bay of Biscay, France, in the 12th century. Also called the Rolls of Oleron, it influenced maritime activities in England, France, Scotland, Flanders, Prussia and Castile. The Rolls were also  compiled by the Wisbians from the 13th century to the 14th century). Wisby was the headquarters of the Hanseatic League of Germany until 1361. These maritime laws delved into the shipmaster’s responsibilities, navigational rules, and treatment of stowaways.

Consolato del Mare : Italian Maritime Regulations adopted in Europe

Dating back to the 17th century (1600-1700 AD), Consolato-del-Mare also called “Consulate of the Sea,”  – a comprehensive maritime regulations guide that covered maritime governance issues in the city-states of Italy. Interestingly, its use didn’t remain confined to Italy alone. Its influence spread ripples across seas and oceans like a tsunami. Its legislation found recognition and was adopted in multiple maritime communities in Europe, a testament to its universal acceptance. Its legal framework covered a vast array of topics, from providing a maritime compass for merchants, sailors, and rulers alike to addressing traders issues of contracts, insurance, and disputes, thus fostered a sense of order in the busy Mediterranean Sea markets.

A fascinating aspect of this masterpiece maritime code was the treatment of captured goods and ships, and the obligations of ship-owners in treating prisoners of war (POWs). It also delved into the realm of ‘prize law’ and rules for ‘distribution of spoils’ in the event of a successful maritime capture, reflecting upon the need for a structured legal framework to address ‘piracy and privateering’ separately. It provided a blueprint for the conduct of maritime affairs during an era of flourishing trade and exploration. However, Consolato del Mare lost relevance in the 18th century due to a combination of changing economic structures, the emergence of colonial powers with advanced naval technology and vessels, and the rise of the centralised nation-state paradigm, causing a need to shift towards the establishment of a uniform legal system governed by national laws. There was a felt need for a more standardised, internationally accepted modern maritime law capable of addressing on-going treaties and diplomacy, maritime technological advancements and shifts in geopolitical power. As the maritime landscape transformed, the code crafted in the mediaeval era struggled to adapt and paved the way for a more contemporary and globally applicable legal framework.

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

In contemporary times, UNCLOS, enacted in 1982, came into force. It is a comprehensive international framework for the governance of maritime zones and oceans around the world. It delineates the rights and responsibilities of nations at sea and their rights and limitations with respect to maritime boundaries, resource management and environmental protection. UNCLOS I and II sessions held from 1956 to 1960 did not yield a comprehensive treaty, though the sessions laid the groundwork for subsequent UNCLOS-III (1973-1982).

UNCLOS-III was adopted on December 10, 1982, after addressing upcoming maritime technology requirements, maritime boundaries, EEZ concerns, sustainability concerns, and environmental concerns, in addition to other marine resource management issues in international waters. It came into force on November 16, 1994, after being ratified by a sufficient number of countries. It establishes a legal framework governing a broad range of maritime issues, including:

  1. Territorial sea: The convention defines the territorial sea as the waters extending up to 12 nautical miles from the baseline of a coastal state, where the state has complete sovereignty.
  2. Contiguous zone: Beyond the territorial sea lies the contiguous zone, extending up to 24 nautical miles from the baseline. In this zone, the coastal state has the right to exercise control over customs, immigration, and sanitary regulations.
  3. Exclusive Economic Zone (EEZ): Extending up to 200 nautical miles from the baseline, the EEZ gives the coastal state exclusive rights to explore and exploit natural resources, including fisheries and minerals.
  4. Continental shelf: The continental shelf extends beyond the EEZ and comprises the seabed and subsoil of the submarine areas adjacent to the coast. Coastal states have sovereign rights over their continental shelves for the exploration and exploitation of natural resources.
  5. High seas: Beyond national jurisdiction, the high seas are open to all states for navigation, fishing, scientific research, and other peaceful purposes. However, no state can claim sovereignty over any part of the high seas.
  6. Environmental protection: UNCLOS recognises the importance of protecting the marine environment and mandates cooperation among states to prevent and control marine pollution and conserve marine biodiversity.
  7. Dispute resolution: UNCLOS establishes mechanisms for the peaceful settlement of disputes arising from the interpretation or application of the convention. These mechanisms include negotiation, conciliation, arbitration, and adjudication through the International Tribunal for the Law of the Sea (ITLOS).

Role of maritime international courts and tribunals

Many international maritime courts and tribunals play a role in resolving maritime disputes. A few major ones in brief are tabulated below :-

Name of the Court/TribunalRole/Locus of the institutionReference/LocationNature of Disputes addressed
International Tribunal for the Law of the Sea (ITLOS): Independent judicial body established by UNCLOSEstablished by Part XV of UNCLOS. Headquarters in Hamburg, Germany. Adjudicates UNCLOS relevant disputes. Is the primary forum for disputes related to the law of the sea, maritime boundary disputes, freedom of navigation, and marine exploitation.Also provides advisory opinions on other maritime matters.
International Court of Justice (ICJ)While not exclusively a maritime court, the ICJ hears cases related to the law of the sea and maritime boundaries when states/UN submit disputes to it.The principal judicial organ of the UNO.Established in June 1945 by the UN Charter. Began work in  April 1946.Location – Peace Palace, The Hague (Netherlands).General reference for disputes between states, as per the Statute of the International Court of Justice.
Permanent Court of Arbitration (PCA)Facilitates arbitration and dispute resolution between states.The Hague(NetherlandsHas been involved in maritime disputes related to the law of the sea
Adhoc Arbitral TribunalsConstituted to address specific maritime disputes between states.As per the directive of the ICJ or UN Security Council mandate.Establishment and procedures are  outlined in specific agreements or conventions between disputing parties
ITLOS Annex VII Arbitral TribunalAddress disputes submitted under Annex VII of UNCLOS. Established under UNCLOS, Annex VIIIs the Court of Arbitration responsible for the resolution of disputes relating to the Law of the Sea.
International Seabed Authority (ISA) Administrative TribunalDeals with disputes arising under Annex VIII of UNCLOSHQ located at Kingston, JamaicaIt came into existence on  November 16, 1994Resolution of disputes related to the exploitation of mineral resources in the deep seabed.
Special Arbitral Tribunal under Annex VIII Established under UNCLOS, Annex VIIIThe Hague,  NetherlandsResolution of disputes related to the exploitation of mineral resources in the deep seabed

The choice of an arbitration forum is often a matter of negotiation between the parties. Consent to jurisdiction is a crucial aspect of maritime law. The complexity of the legal issues, the preferences of the parties, and the specific provisions governing the dispute influence the selection of the appropriate forum for resolution.

Conclusion

The maritime laws of antiquity have an indelible influence on the canvas of contemporary legal maritime affairs. Transitions of maritime law from ‘Phoenician Laws to UNCLOS’, have gone through turbulent waters over centuries. UNCLOS, with its current sea legs, is a landmark achievement as it provides a comprehensive international maritime framework for the governance of the world’s seas and oceans. Its evolution reflects the global community’s recognition of a cooperative and equitable approach to the use and protection of maritime resources. The role of international maritime courts and tribunals is undeniably crucial in shaping the legal seascape. ITLOS, ICJ and specialised entities like ISA serve as pillars of justice by providing a mechanism for a peaceful resolution of disputes. Their effectiveness lies in their ability to apply the maritime law and conventions under UNCLOS without pressure, as their judgements set precedents that guide states and shape evolving norms of maritime behaviour.

Consent to jurisdiction is a crucial aspect of ML. The voluntary nature of jurisdiction and the need for the sovereign’s consent lead to selective participation. States choose forums based on their strategic interests, which leads to fragmentation of the conflict resolution mechanism. Further, the intricate nature of maritime disputes – like maritime boundary / resource sharing / environmental issues, – add complexity to the legal proceedings. Strategic confrontation, evolving geopolitical and competing economic interests act as a blockade to upholding the universality  of ML. Rule based order on multiple occasions is ignored by the high and mighty. Navigating diligently without bias, between the ‘rights of coastal states’ and ‘freedom of navigation on high seas’, is a challenge for these legal institutions. 

In the ever evolving maritime domain, the decisions of legal institutions are important as they contribute to manifest clarity of legal principles. These decisions help foster cooperation; instil stability in maritime affairs, act as a beacon of international cooperation and promote peaceful dispute resolution. The voyage to attain effective and equitable maritime governance is never ending. Therefore, we need to strengthen mechanisms like the UN Security Council and work towards multilateralism so that fathomable decisions given by these legal institutions are implemented in letter and spirit.                                    

References

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