This article has been written by Chandan Kumar Pradhan, from KIIT School of Law, Odisha. This article talks about the existing conflicts over the oceans.
Shipping and fishing are the main areas of the sea. Depending on human development, there were many cases of the use of technology, and sometimes they attempted to satisfy the needs of human beings. Many other resources and minerals, natural gas, oil, sand and gravel, diamonds, gold and other resources were made from the seabed. With the development of trade in the 20th century and the inexhaustible realization of sea use, the classic principle of “Freedom of the Sea ” was pushed into the background.
Codification of the Law of the sea
After 1945, once the UN was set up, it was decided by the UN security council and the Secretariat that there was a need to codify existing rules especially with regards to the Law of the seas and to come out with permanent solution vis-a-vis the maritime territorial limit of any country.
With this view, the UNCLOS was passed, which codified the existing customary rules, and it came into force in 1999, even though the agreement was signed in 1982.
Since 1945, almost all the countries of the World have replaced the “cannon-shot rule” with 12 nautical miles rule under which an area of 12 nautical miles from a country sea coast is presumed to be the exclusive maritime limit of one country, and these rules are also acknowledged and accepted under the UNCLOS rules and regulations.
A classified example of maritime disputes, existed between India and Sri Lanka, commonly known as the Ram Setu Bridge, connecting Dhanushkodi in India to Talaimannar in Sri Lanka.
What is UNCLOS?
UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also known as the Law of the Sea. It is an international agreement or treaty which establishes rules and guidelines for using the world’s oceans and seas, so as to use and conserve marine resources and to secure the preservation and protection of all the living beings of the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, as a result of the United Nations Conference on the Law of the Sea, which took place from 1973 to 1982, and came into force in 1994.
What is the role of this convention?
The convention defines several maritime zones. Namely the baseline, the territorial waters, the contiguous zone, the exclusive economic zone, the continental shelf, the International seabed area.
The exclusive economic zone is international water, which can be accessed and used by each country for economic purposes. It is currently the dominant law of the sea.
There is no limit or boundary set for commercial or marine business in these International waters.
What is the history of this convention?
Several countries have expressed a desire to expand national maritime information, use natural resources, protect fish stocks and reduce pollution. For this purpose, the League of Nations held a conference at The Hague in 1930 but failed to reach an agreement. In the 20th century, technological development in fisheries and oil production have increased the maritime scope in which countries can find and use natural resources.
This motivated the President of the United States, Harry S. Truman, in 1945 to increase the U.S. jurisdiction outside of all of its continental shelf natural resources, far beyond the Country’s territorial waters.
Grotius’s concept “Freedom of the Sea” became practically universal in the 20th century due to the global dominance of European navies. National rights and jurisdiction over oceans are limited to certain water belts that stretch from the Country’s coast, usually 3 miles (5.6km), according to Bynkershoek’s “cannon fire” rules. According to the maxim “Mare Liberum” all water outside the Country’s border is considered as the International waters which is free for all countries, but not for anyone.
Responding to British lawyer Grotius, John Seldon argued in a saying called “Mare Clausum” that the sea was able to seize sovereign power like land and territory. Seldon rejected Grotius’s assumptions, arguing that there was no historical system for treating the sea differently from the mainland, and there was nothing inherent in the nature of the sea that prevented the State from controlling its parts. Basically, International Law can frame the National jurisdiction that appears above the sea.
Territorial rules with regard to the law of the sea
Under Customary International Laws, the Law of the seas were not codified only because of the fact that at that time the ocean was considered as an important maritime property, through which countries could claim their sovereignty, open up new trading rules and also capture new territories with the help of either trading companies or powerful navels.
Nevertheless, by the 17th century, a Customary International Law started evolving amongst countries, which categorically laid down the fact that a country’s territorial limit from the coastal sea shall be limited to 3 nautical miles, under which the Country shall exercise absolute jurisdiction and no foreign vessels or ships will be allowed within that territory, except for certain restricted conditions.
This 3-mile rule was known as the “cannon-shot rule” and the restrictions given for foreign ships to enter into the territorial waters at a host was known as the “Doctrine of innocent passage” and if a foreign vessel was exercising to the innocent passage, then no conditions were allowed to run any over or over operations against the territorial integrity of the host State.
India’s position on territorial waters
India’s position in relation to the Law of the sea is generally governed by Article 297 of the Indian constitution and laws on waters, continental shelf, EEZ and other maritime zones. Maritime zone Law defines Indian sovereignty over the waters and the seabed, as well as the land and airspace above those waters. An area of the boundary line is where each point is 12 nautical miles from the closet point to the baseline. All foreign vessels have the right pass that is innocent passage through territorial waters.
The South China dispute
5000 years ago, China was governed by the Ming dynasty, who were also famous as Terracotta warriors.
In a navel map, at the times of the Ming period, the entire region, boarding the south China sea along the coast of Vietnam, Indonesia and the Philippines were shown to be Chinese territory.
In the present times, the Chinese government has claimed these areas under the South China sea, coming within the territorial waters of many southeast Asian Nations as its own territory.
The Chinese called this new boundary as the (nine-dash line) territory.
In 1988, the Imperial Chinese navy with the support of the Chinese air force repeatedly intruded into the territory of water of the Philippines and started the construction of artificial islands called the Spratly and johnson group of islands.
The Philippine government strongly protested this movement on the grounds that the disputed territory was within the maritime limit of Philippine sea waters and China had violated the territorial sovereignty of Philippine.
Repeated requests were made by the Philippino government to the Chinese authority to stop construction in the disputed territories, but it was openly ignored by the communist party of China and since1988, the Chinese government has built a series of smaller artificial islands, military installations, air force and naval bases to further strengthen the Spratly and Johnson islands.
In 2015, the Philippino government approached the PCA (Permanent Court of Arbitration) to resolve the South China Sea dispute, where the Chinese government did not appear before the PCA. The PCA categorically held that (nine-dash line) theory of China was grossly inaccurate, construction of Spratly and Johnson islands were illegal, China had violated almost all its treaty and obligations, which are coming under UNCLOS and violation of Customary International Law and more specifically in Article 2(4) of the UN Charter.
China refused to agree to the decision. After the decision of the PCA, the Chinese navy started building large seaports in the Spratly harbour, so that Chinese naval aircraft carrier fighter squadrons of the Chinese air force can be permanently posted in the Spratly armed forces base.
Since 2016, China has started building more islands in the territorial waters of even Vietnam, Indonesia and Malaysia and is now claiming that the nine-dash rule is actually correct and they would actually keep on building more islands in the south China sea.
The contiguous zone is the part of the sea that is outside and adjacent to the territorial waters of a coastal country. This is not the object of a subsidiary, but in this coastal country, they can exercise certain jurisdictional rights. The concept of an adjacent zone develops because countries cannot effectively protect all their interests because of the limited interference on the territorial sea. The 1982 convention established the concept of an exclusive economic zone (EEZ) which fully covers the contiguous zones.
According to Article 33 of the 1982 Convention, Contiguous zone must not be more than 24 nautical miles from the baseline where the territorial sea area is measured. Thus the area of the contiguous area is 12 miles from the territorial sea.
India’s position on contiguous zone
India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the Maritime Zones Act of 1976.
According to W.Friedman, the continental shelf can be defined as the zone around the continent that extends from a low water line to depth and usually marked towards greater depth. What is commonly referred to as a “continental shelf” is a sloping platform that covers continents and islands? This is a submerged seabed that borders continental landmass and is found as an extension or part of that land. It usually extends to a depth of about 200 meters.
The coastal countries have limited sovereignty rights on the continental shelf to explore and use “natural resources”, not sovereignty.
India’s position on the continental shelf
The Maritime Zone Act defines India’s position that India has declared a continental shelf 200 nautical miles from land. Indian rights and obligations under this command are similar to those in other countries, as stipulated in international conventions. But, the government can declare the continental shelf and its magical waters for a certain area and take action to regulate it.
Exclusive Economic Zone
An exclusive economic zone is a sea zone prescribed by UNCLOS, over which a State has several rights regarding the exploration and use of marine resources including energy production from water and wind. It stretches from the baseline, until 200 nautical miles (370.4 km) from its coast. In geographical terms, the EEZ may also include the continental shelf.
The main difference between the territorial sea (12-mile rule) and the exclusive economic zone is that while territorial sea confers full sovereignty over the waters, EEZ is merely a sovereign right which refers to coastal State right below the surface of the sea.
An example of an exclusive economic zone is the Bombay High, between 73 to 74 nautical miles of the Indian coast which is used for oil exploration by the Indian government.
India’s position on EEZ
Section 7 of the Maritime Act of 1976 provides exclusive rights for the purpose of exploring and exploiting the natural resources within EEZ.
Flag State rule
For legal purposes, a vessel, ship, aircraft, the submarine has to be registered in a particular country, and for all practical purposes, it must fly or display the flag of the registered country.
The Flag State rule is applicable for both military and commercial ships, also for all kinds of oil tanks and even cruise ships.
As of now, Liberia and Panama are the two countries which have a maximum number of ships registered but most of the ships are broken down and sold as junk in Alang, Gujarat.
The Flag State rule principal has also been implemented under Part VII Article 92 of UNCLOS and even in environmental disputes, the Flag State rule can be implemented under Article 217(1) of UNCLOS, 1982.
S.S Lotus case (France Vs. Turkey, 1927)
In 1925, after Mustapha Kemal pasha started liberalising the Turkish economy, Turkey started to expand the trade abroad with other countries. Unfortunately, a French vessel S.S lotus and Turkish ship S.S Bozkurt collided, because of which the Turkish ship damaged and killed 8 Turkish Nationals on board of Turkish vessel. The remaining survivors of the Turkish ship were taken to Turkey onboard S.S lotus.
In Turkey, the captain of the French ship, and the first watch officer, Monsiver Demons, were charged with manslaughter and Demons was sentenced to imprisonment and fine. The French government demanded the release of Monsieur Demons and the transfer of his case to the French Court. Turkey and France agreed to refer the dispute to the PCIJ(Permanent Court of International Justice).
The French and the Turkish government were strongly blaming each other and Monsieur Demons was being charged by the Turkish government of knowingly causing the accident. The French government further contended that only they have a right to trial the individual because the incident involved a French ship and a French National.
The PCIJ held that Turkey had violated no norms of International Law by instituting a case against Monsieur Demons and also had no rights to prosecute him.
After this judgement, there was a huge criticism and after the formation of the United Nation, certain changes were brought in the Flag State rule.
Rights of the coastal States
The States cannot exercise sovereignty over coastal State. They will exercise sovereignty rights to explore and exploit minerals, non-living resources of the ocean floor and soil when the primary 5 years of production at that place. The speed shall increase by 125th of the value of each resulting year till 12 years and shall stay seven-membered thereafter. If coastal States don’t explore or exploit shelf resources no alternative State could undertake these activities without its specific consent.
However, the rights of the coastal State over the seabed don’t have an effect on the regime freedom of navigation on the high seas or that of the airspace higher than the superimposed waters.
The high seas mean, all the parts which are not coming under EEZ, territory or inland waters of a country. This rule was formulated by Grotius in his maxim on “Mare Liberum” in 1609 and claimed that the sea could not be owned by anyone.
As a result, all States supported that ships can go and use freedom of navigation, fight, fishing and building artificial islands etc. But, the command has been considerably changed under the convention on the Law of the sea of 1982.
Article 87(2) of the convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard to the interests of other States in their exercise of the freedom of high seas”.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) creates a comprehensive command to govern the rights of nations in respect of the world’s oceans. International Maritime Organization (IMO) is a specialized agency of the United Nations responsible for improving maritime safety and preventing pollution from ships.
Life itself arose from the oceans. Even now, when the continents have been mapped and their interiors made accessible by road, river and air, most of the people in the world live no more than 200 miles from the sea and relate closely to it.
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