This article is written by Uzma Naureen and pursuing a Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution. This article has been edited by Zigishu  (Associate, Lawsikho). 

This article has been published by Sneha Mahawar.

Introduction

In the present era, we have continents and countries, each with its unique history, establishing its own laws, rules, and regulations. Is chewing gum banned in Singapore? Yes, it is. Is it illegal to suspiciously hold a salmon in England? Yes. Is it prohibited by law to feed pigeons in Venice? Yes, it is. Is it true that some states even legislate and impose limitations on what people wear? Yes, very much. Thankfully, not all laws are universal. The laws of the State are different and distinct from one another. So, what happens if a dispute arises between two Nations or States? Which State’s law should we follow to resolve the dispute? That is where International law comes to play. 

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International law, also known as public international law, in its broadest definition, is a set of laws, norms, and standards that are generally accepted as binding between nations. The goal of international law is to encourage the conduct of stable, consistent, and organized international interactions. It sets normative guidelines as well as a shared conceptual framework for countries in a variety of sectors, including war, diplomacy, trade, and human rights. It also governs outer space, the moon, Antarctica, and the ocean. In this article, we will talk about the ocean.

Are there any laws governing the ocean

The oceans have no discernible surface features, only a flat, huge, saline plain. They’re also all linked together. The world’s five oceans are technically one ocean that encompasses 71% of the planet. Land can be divided and distributed. Ocean, on the other hand, cannot be divided, and so ultimately, we own the oceans. But how much of it is owned by us?

During the age of great discoveries, the early maritime powers, Spain and Portugal, demanded exclusive sovereignty over the seas. A battle, which was settled effectively dividing the Atlantic Ocean into two, by Pope Alexander the 6th, and by the Treaty of Tordesillas in 1493-1494. Other powers did not accept this dispute settlement, particularly the French, Dutch, and English. Hugo Grotius, a Dutch legal scholar and early theorist of natural rights published the book Mare Liberum in 1609 to establish a different legal understanding, the Free Sea. Grotius is often called the father of modern international law. With his book, he provided the legal basis for controversy. He developed the freedom of navigation which continues to be valid to this day. 

Therefore, for centuries, it was agreed among the people that no one owned the ocean. People and explorers moved freely in the oceans, caught fish, traded, etc. This was referred to as the Freedom of the Seas Doctrine or the Doctrine of Mare Liberum. But when we say ‘ocean’ we don’t mean all of it. This freedom of the seas was not unlimited. Coastal states claimed sovereignty over their coastal waters for both economic as well as security purposes. The breadth of the territorial sea was limited to three nautical miles. Therefore, the sea surrounding a nation (extending to 3 miles) was a part of that nation’s territorial boundaries and if someone tried to enter those waters belligerently, it could be considered an invasion, which, more often than not, results in war. The remaining majority of the sea was the ‘ocean’ that was shared by all nations. The freedom of the seas and oceans was in place for many decades without significant further development of the legal framework. 

But, the two world wars, the colonization with tensions between industrialized and developing countries, the Cold War as well as technological developments, the exploration of marine resources, overfishing, increased marine pollution, and other marine usages all called for an international legal instrument for the seas and oceans.

The Geneva conventions on the law of the sea

Through an enormous international effort since 1949, the international community tried to incorporate the law of the sea in the framework of the United Nations. Very long negotiations followed with an interim solution in 1958 but it was only in 1982 that the UN convention for the law of the sea was adopted, which entered into force in 1994. UNCLOS was created to replace the 17th-century ‘freedom of the seas’ theory, which confined national sovereignty to a specified belt of water that normally extended up to 3 nautical miles (5.6 km) from a nation’s borders.

In 1956, the General Assembly of the United Nations conducted the first Conference on the Law of the Sea (UNCLOS I) in Geneva, Switzerland, which resulted in the adoption of four conventions in 1958. They were as follows – 

A) Convention on the Territorial Sea and Contiguous Zone, which came into force on 10 September 1964, 

B) Convention on the Continental Shelf, which came into force on 10 June 1964, 

C) Convention on the High Seas, which came into force on 30 September 1962, and 

D) Convention on Fishing and Conservation of Living Resources of the High Seas, which came into force on 20 March 1966. 

The Conference, whose purpose was to examine the law of the sea, taking into account not only legal but also technical, biological, economic, and political aspects of the problem, and to incorporate the results of its work into one or more international conventions or other instruments as it deemed appropriate. However, it was unable to keep the provisions on the Law of the Sea in one instrument. Four conventions and a protocol were adopted in lieu of a single convention, which was conceived as a device to lure a broad range of States to accept at least some of the Conventions, thereby steering clear of very radical reservations, or the decision by some States to refuse the acceptance an all-encompassing convention due to opposition to one or more of its key component parts.

Convention on the Territorial Sea and Contiguous Zone

The objective of this convention was to define and limit the contiguous zone and the territorial sea. It said that nations cannot prohibit foreign ships from passing through straits utilized for international navigation between one section of the high seas and another section of the high seas or a foreign state’s territorial sea. Beyond territorial seas, a number of other maritime zones exist. A contiguous zone—which must be claimed and does not exist automatically, unlike territorial seas—allows coastal nations to exercise the control required to prevent and punish violations of customs, sanitary, fiscal, and immigration restrictions both within and outside their territory or territorial sea. This zone is 12 nautical miles long.

Important provisions

Part I of the Convention deals with the Territorial Sea, which is defined in Section I as, “The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.” (Article 1).

 As per Article 2, a coastal state’s sovereignty extends to the air space above its territorial sea, as well as its bed and subsoil.

Section II provides for methods to calculate the breadth of the Territorial Sea, starting from a baseline as set out in Article 3, which says, “…the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” 

Article 5 defines Internal Waters.  It says that the seas on the landward side of the territorial sea’s baseline are part of the state’s internal waters.

The right of innocent passage for ships is addressed in Section III. It sets the rights and duties of both the coastal and the flag states. Special provisions apply to merchant ships, government ships and warships under this section.

Part II of the Convention deals with the contiguous zone, which is defined in Article 24 which says that the contiguous zone may not extend more than twelve miles from the baseline used to determine the territorial sea’s breadth. 

“Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.” (Article 24).

Convention on the Continental Shelf

The objective of this convention was to delimit and define the rights of States to exploit and explore the rich natural resources found in the continental shelf. It establishes guidelines for the notion, limitations, and regime of the continental shelf. The essential concept of the coastal state’s sovereign right to resources in an area of the seabed beyond the territorial sea’s external limit has only recently developed in state practice. The Convention “crystallizes” a relatively short process of forming a customary rule, which incorporates the notion that the coastal state’s rights over the shelf do not require occupancy or public proclamation. The Continental Shelf Convention superseded the previous practice of nations having sovereignty over only a small strip of sea surrounding them, with everything beyond that strip being deemed International Waters. This strategy was followed until President Harry S Truman issued an Executive Order on September 28, 1945 declaring that the resources on the continental shelf bordering the U.S belonged to the U.S. Many other countries widely embraced similar practices, with the majority claiming that their section of the sea was 12 or 200 nautical miles from their coast.

Important provisions

For the purposes of exploration and exploitation, coastal states have sovereign and exclusive rights over the continental shelf as stated in Article 1. It says, “…the term “continental shelf” is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.”

“Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipelines on the continental shelf.” (Article 4)

The convention outlined not just what was permissible in continental shelf zones, but also what could not be done. Such exploration or exploitation must not obstruct shipping, fishing, or the conservation of the sea’s living resources, or oceanographic or other scientific study, in an unjustified way. (Article 5).

Convention on the High Seas

This convention’s goal was to codify the rules of international law governing the high seas. The high seas are defined as all areas of the sea that are not part of the territorial sea or internal waters. It specifically addresses freedom of the high seas as well as a State’s right to have ships flying its flag under its control if certain conditions are met, including the contentious requirement of a “genuine link”; the flag State’s rights and obligations; piracy; hot pursuit; the right of visit; and the laying of submarine cables and pipelines. It also includes two groundbreaking measures on pollution caused by oil spills and radioactive wastes. This convention is divided into 37 articles. 

Important provisions

As per Article 1, the high seas are defined by the convention as all areas of the sea that are not part of a state’s territorial sea or internal waters.

 “The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia, both for coastal and non-coastal States: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay submarine cables and pipelines; (4) Freedom to fly over the high seas. These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas” (Article 2)

“1. In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast should have free access to the sea. To this end States situated between the sea and a State having no sea coast shall by common agreement with the latter, and in conformity with existing international conventions, accord: (a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and (b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports. 

2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions”. (Article 3)

Article 4 deals with the “flag state”. It declares that any state, whether coastal or not, has the right to sail ships on the high seas under its flag.

The practice of registering a merchant ship in a state other than the ship’s owners and flying that state’s civil ensign on the ship is known as “Flag of convenience.” Ships may be registered under convenience flags to save money on fuel, dodge regulations, and avoid scrutiny, inspection, and examination by the owner’s country.

“1. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. 

2. For the purposes of these articles, the term “warship” means a ship belonging to the naval forces of a State and bearing the external marks distinguishing warships of its nationality, under the command of an officer duly commissioned by the government and whose name appears in the Navy List, and manned by a crew who are under regular naval discipline” (Article 8)

“1. Every State shall require the master of a ship sailing under its flag, insofar as he can do so without serious danger to the ship, the crew or the passengers: (a) To render assistance to any person found at sea in danger of being lost; (b) To proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, insofar as such action may reasonably be expected of him; (c) After a collision, to render assistance to the other ship, her crew and her passengers and, where possible, to inform the other ship of the name of his own ship, her port of registry and the nearest port at which she will call. 

2. Every coastal State shall promote the establishment and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and — where circumstances so require — by way of mutual regional arrangements cooperate with neighboring States for this purpose”. (Article 12)

According to Article 14, “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State” and Article 15 enounces that “Piracy consists of any of the following acts: (1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

 (2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

 (3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article”.

States agree to develop legislation to prevent pollution of the sea from oil spilled from ships and pipelines, as well as from seabed exploration and exploitation. As Article 24 states, every State must develop laws to avoid contamination of the waters caused by oil spills from ships or pipelines, or by the exploitation and exploration of the seabed and its subsoil, taking into consideration existing treaty obligations and provisions on the subject.

They also agree to take steps to prevent radioactive waste from being dumped in the sea, as well as to work with international authorities to prevent pollution of the oceans or airspace above them caused by radioactive materials or other dangerous agents. As per Article 25, every State must take measures to prevent pollution of the waters caused by the disposal of radioactive waste, taking into consideration any rules and regulations developed by relevant international organizations. It also states that all States should work with the relevant international organizations to prevent pollution of the waters or the air space above due to any operations involving radioactive materials or other dangerous agents.

Convention on Fishing and Conservation of Living Resources of The High Seas

The objective of this convention was to tackle the difficulties associated with the conservation and preservation of the high seas’ living resources through international cooperation, given that some of these resources are at risk of being depleted and over-exploited as a result of the development of modern techniques. It lays out the ideas and techniques for rational high-seas fisheries management. It calls for cooperation between states participating in the same fisheries, recognizes the coastal state’s special interest when fisheries are conducted in the high seas adjacent to its territorial sea, and mandates the settlement of any major disputes. Some of the restrictions are identical to those that were supposed to be implemented in the UN Fish Stocks Agreement in 1995. The Convention on Fishing & Conservation of Living Resources of the High Seas was controversial at the time, as evidenced by the low no. of accession and ratifications. On one hand, many States wanted to develop and expand their exclusive fishery rights beyond the territorial sea. On the other hand the central role given to compulsory dispute settlement was something that States were not prepared for at the time.

Important provisions

According to Article 1,“1. All States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas. 2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.” 

As stated in Article 2, such measures should be established with the goal of ensuring a supply of food for human use.

According to Article 6 and Article 7, the high seas adjacent to the territorial seas are of special importance to the coastal states, and they may unilaterally adopt conservation measures for these areas that are applicable to all other States if there is a pressing need for them, and the measures are scientifically sound and do not discriminate against foreign fishermen. 

According to Article 9 and Article 11, disputes will be resolved by a five-member special panel, whose judgment will be binding on the parties involved. 

“1. Any dispute which may arise between States under articles 4, 5, 6, 7 and 8 shall, at the request of any of the parties, be submitted for settlement to a special commission of five members, unless the parties agree to seek a solution by another method of peaceful settlement, as provided for in Article 33 of the Charter of the United Nations.

 2. The members of the commission, one of whom shall be designated as chairman, shall be named by agreement between the States in dispute within three months of the request for settlement in accordance with the provisions of this article. Failing agreement they shall, upon the request of any State party, be named by the Secretary-General of the United Nations, within a further three-month period, in consultation with the States in dispute and with the President of the International Court of Justice and the Director-General of the Food and Agriculture Organization of the United Nations, from amongst well-qualified persons being nationals of States not involved in the dispute and specializing in legal, administrative or scientific questions relating to fisheries, depending upon the nature of the dispute to be settled. Any vacancy arising after the original appointment shall be filled in the same manner as provided for the initial selection

3. Any State party to proceedings under these articles shall have the right to name one of its nationals to the special commission, with the right to participate fully in the proceedings on the same footing as a member of the commission, but without the right to vote or to take part in the writing of the commission’s decision. 

4. The commission shall determine its own procedure, assuring each party to the proceedings a full opportunity to be heard and to present its case. It shall also determine how the costs and expenses shall be divided between the parties to the dispute, failing agreement by the parties on this matter.

 5. The special commission shall render its decision within a period of five months from the time it is appointed unless it decides, in case of necessity, to extend the time limit for a period not exceeding three months. 

6. The special commission shall, in reaching its decisions, adhere to these articles and to any special agreements between the disputing parties regarding settlement of the dispute.

 7. Decisions of the commission shall be by majority vote” (Article 9)

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

Although UNCLOS I was deemed a success, it left unresolved the critical issue of the territorial sea’s breadth. It was because all of the States could not agree on a single territorial sea limit. In order to resolve this issue, a second conference on the Law of the Sea was conducted in 1960 (UNCLOS II), which introduced no significant changes. It became clear that the Geneva conference’s laws were inadequate in light of the undiscovered large quantities of minerals, oil, and gas resources in the sea, as well as the increasing efficiency and capacity of some states to exploit them. 

The Geneva Conventions are primarily historical in nature, as they are an expression of “traditional law of the sea,” that is, the law that prevailed prior to the changes in the international community and its assessment and evaluation on the uses of the seas that resulted in the Third UN Conference on the Law of the Sea.

In 1967, Maltese delegate to the United Nations, Arvid Pardo, stepped up urging U.N. members to utilize their combined influence to reach an agreement on the equitable and responsible use of the world’s oceans. He presented a survey of the seabed’s mineral resources before the United Nations General Assembly’s First Committee. His survey revealed in great detail the abundance of minerals such as iron, manganese, titanium, copper, and so on that exist in vast amounts beneath the ocean. He also declared that the ocean floor and the seabed should be treated as the “common heritage of mankind”. Furthermore, thanks to tremendous advancements in technology and science, it was possible to investigate, explore and exploit these minerals to a large extent. This investigation of the seabed’s mineral resources, undertaken by Arvid Pardo, and the acute and urgent demand for minerals, as well as other considerations such as military and strategic issues, made it necessary to enact legislation that could potentially manage and regulate the sea in a more effective manner.

After a nine-year conference that resulted in the UN Convention on the Law of the Sea, it took 15 years for an agreement to be reached. The conference, which drew more than 160 countries, lasted until 1982. The resulting convention went into effect on November 16, 1994. It superseded the four Geneva Conventions of April 1958, which dealt with the territorial sea and contiguous zone, fisheries, the high seas, the continental shelf, and the conservation of living resources on the high seas, resulting in the establishment of three new institutions. The three newly formed institutions retained various parts and ideas of the previous four conventions. The institutions are, namely –

  1. the International Tribunal for the Law of the Sea,
  2. the International Seabed Authority, and
  3. the Commission on the Limits of the Continental Shelf.

According to Article 311, paragraph 1, the UN Convention on the Law of the Sea of 1982 supersedes the Geneva Conventions on the Law of the Sea of 29 April 1958 as between States Parties. The majority of the Geneva Conventions’ signatories are among the 155 countries that signed the 1982 Convention. The latter Conventions bind only the few States that are parties to the applicable Geneva Convention but not to the 1982 Convention, or in their connections with them. In the examples of the United States, Colombia, Israel, and Venezuela, this is especially true.

International Tribunal for the Law of the Sea (ITLOS)

There are 4 mechanisms provided by UNCLOS for the settlement of disputes, namely, the International Court of Justice, International Tribunal for the Law of the Sea (ITLOS), an arbitral tribunal constituted as per Annex VII of UNCLOS, and a special arbitral tribunal constituted as per Annex VIII of UNCLOS. Article 287 of the UNCLOS lists it as one of four dispute resolution mechanisms.

ITLOS is an independent judicial organization created by the UN Convention on the Law of the Sea (UNCLOS) to resolve disputes arising from the Convention’s interpretation and application on the Law of the Sea, and for rendering advisory opinions. ITLOS works to protect and preserve the numerous maritime resources and species. It also aids in the advancement and transfer of maritime technology by promoting and leveraging scientific research.

The Tribunal is made up of 21 independent members chosen from among those with the best reputation for fairness and integrity, as well as recognized expertise in the field of maritime law. The Tribunal’s composition must ensure adequate representation of the world’s major legal systems, as well as an equal geographic distribution. The States Parties have decided to elect five judges from Africa and Asia, four from Latin American and Caribbean States, four from Western European and Other States, and three from the Group of Eastern European States during their annual meetings in New York. In comparison to the International Court of Justice, where judges from the five permanent members of the UN Security Council occupy one-third of the fifteen seats, the Tribunal’s makeup plainly suggests that developing countries have been given more weight. The Tribunal is also more reflective of the various legal systems and regions of the world due to its larger size. If the Tribunal does not have a judge of a party’s country on the bench, that party may choose a person of its choice to sit as an ad hoc judge.

Jurisdiction of the tribunal

According to Article 21 of ANNEX VI, any issue involving the interpretation or implementation of the Convention, as well as other topics specifically provided for in any other agreement conferring jurisdiction on the Tribunal, is subject to the Tribunal’s jurisdiction. Article 288 of UNCLOS refers to the jurisdiction of all possible compulsory dispute resolution bodies, stating that each shall have jurisdiction over any dispute submitted to it in line  with this Part concerning the interpretation or application of this Convention, as well as any dispute submitted to it as per the agreement concerning the application and interpretation of an international agreement regarding the purposes of the Convention. Both provisions give parties the option of referring any issue relating to the UNCLOS and related international treaties to the Tribunal. Article 288(2), on the other hand, purports to limit the Tribunal’s consensual jurisdiction to the interpretation and application of any international agreement relevant to the Convention’s purposes whereas, Annex VI, Article 21 refers to any additional agreement that grants the Tribunal jurisdiction. Furthermore, whereas Article 21 refers merely to “agreements,” Article 288(2) the Tribunal’s consensual jurisdiction is limited to “international agreements”.  A broad approach based on Annex VI’s Article 21 appears to support claims to use the Tribunal to decide any dispute, regardless of whether it relates to law of the sea or is based on an international agreement. All that is required is an agreement to bring the matter before the Tribunal.

States Parties to UNCLOS are eligible to participate in the Tribunal. Entities other than States Parties are also welcome to participate, that is, States or intergovernmental organizations that are not parties to UNCLOS, as well as private entities and state enterprises in any matter specifically provided for in Part XI, or in any case brought pursuant to any other agreement conferring jurisdiction on the Tribunal that is agreed by all parties to the case. (Article 20). 

ITLOS members are elected for a nine-year term and are eligible for re-election. One-third of the members’ terms expire every three years. In addition, the United Nations General Assembly mandates that each geographical group have at least three members. No two members may be citizens of the same country, and the Tribunal as a whole must ensure that the major legal systems of the globe are represented, as well as an equitable geographical distribution.

The Chamber for Marine Environment Disputes, the Chamber for Fisheries Disputes, the Chamber of Summary Procedure and the Chamber for Maritime Delimitation Disputes have all been established by the Tribunal. The Tribunal’s Seabed Disputes Chamber, which consists of 11 judges, hears disputes involving activity in the International Seabed Area. Any party to a case or a dispute over which the Seabed Disputes Chamber has authority can request the formation of an ad hoc chamber made up of three Seabed Disputes Chamber members. The Tribunal is open to all States Parties to the Convention, as well as, in some situations, non-State Parties including international organizations and legal or natural persons.

The Tribunal’s jurisdiction extends to all matters brought before it in conformity with the Convention. It also applies to all matters specifically addressed in any other agreement granting the Tribunal jurisdiction. Unless the parties agree otherwise, the Tribunal’s jurisdiction is necessary in situations involving the immediate release of vessels and sailors under UNCLOS Article 292 and provisional measures until the formation of an arbitral tribunal under UNCLOS Article 290, paragraph 5.

The Seabed Disputes Chamber has the authority to provide legal advice on issues that arise as a result of the International Seabed Authority’s activity. In some situations, the Tribunal may issue advisory opinions under international agreements relevant to the Convention’s goals. Disputes are brought before the Tribunal either through a written application or through the notification of a special agreement. The Tribunal’s Statute and Rules specify the method to be followed while dealing with cases brought before it.

Enrica Lexie Case

Italian Republic vs. Republic of India, took place in 2012 when Salvatore Girone and Massimiliano Latore, two Italian marines, were aboard the “Enrica Lexie,” an Italian oil tanker. Two fishermen on the Indian sailboat “St.Antony” were shot and killed off the coast of Kerala. India claims that two marines on board the oil ship killed two civilians. The tanker was stopped by the Indian Navy, and the marines were captured. This prompted diplomatic tensions between the two countries over a conflict of interest over legal jurisdiction and functional immunity. They were held in India for 2-4 years with no formal charges brought against them. In 2014, the National Investigation Agency (NIA) charged marines with murder, attempted murder, mischief, and common intent under the IPC section.

Proceeding

According to the Supreme Court’s order, India established a special court to determine the pertinence of jurisdiction. The European Parliament claimed in January 2015 that “they were detained with no charge by the Indian authorities, which is a violation of human rights”. Italy petitioned the International Tribunal for the Law of the Sea (ITLOS) in 2015, requesting that seamen be allowed to remain in their home country during the trial process. Italy requested provisional measures against India in this case, requiring India to stop criminal prosecutions against the marines (which the India Supreme Court had already done until the issue of jurisdiction was resolved) and release the marines until the Annex VII Arbitral Tribunal could resolve the issues of which state could claim jurisdiction over the incident and whether the marines in acting as security against piracy for an Italian flagged vessel possessed functional Sovereign immunity for their actions.

Held

ITLOS denied both their requests. Allowing India to pursue criminal proceedings before the Arbitral Tribunal has determined jurisdiction would be an unjustifiable interference with Italy’s rights, according to ITLOS, which ordered temporary remedies requiring India to suspend the proceedings. ITLOS further determined that ordering India to release the marines while the issue of jurisdiction was being settled would be an unjustifiable interference with India’s rights as the state whose citizens were slain in the incident, and hence denied Italy’s request.

The Permanent Court of Arbitration issued its decision in July 2020. It held the following:

  • India lacks the legal authority to try the marines. An Indian court will not be able to try the Italian marines. Because the marines were on a mission for the Italian government, the Court granted them functional immunity.
  • Italy should pay the families of the fishermen who were killed. The amount of compensation will be determined jointly by both countries.
  • Italy’s appeal for compensation for the marines’ detention by India was denied by the court.

International Seabed Authority (ISA)

The International Seabed Authority (ISA), based in Kingston, Jamaica, has 167 members, including the European Union, which is made up of all parties to the UNCLOS. The following bodies control and govern the International Seabed Authority (ISA):

Assembly of ISA

The International Seabed Authority Is supreme authority is the assembly, which is made up of all ISA members. This body is in charge of formulating overall policies and budgets.

Executive authority 

ISA also elects the executive authority, which is a 36-member council that approves contracts with private firms and government bodies. These agreements cover the exploration and mining of specific portions of the global seabed.

The Secretary General 

The ISA secretary-general is nominated by the council and elected to a four-year term by the assembly. The current Secretary-General of the International Seabed Authority is Michael W. Lodge (ISA).

The Finance Committee is in charge of budgetary issues. The Council and Finance Committee are further overseen by a Legal and Technical Commission, which consists of 30 members. All members are professionals who have been nominated by governments and chosen to serve in their own right.

The International Seabed Authority (ISA) was established using the authority granted under Article 136 of UNCLOS. It was established to organize, regulate, and control all mineral-related operations in the international seabed area that fall outside of national authority. It regulates deep seabed mining and ensures that the marine environment is safeguarded from any negative consequences of mining activities. In July 2002, ISA held its first workshop. The main goal of this worldwide workshop was to create an environment suitable to conduct research on metallic nodule areas beneath the sea. Scientists, contractors, representatives, and members of the legal and technical commission attended the session. They chose four key themes for future study that would be carried out in collaboration with international partners to better understand the deep sea ecosystem. It also has access to deep seabed data.

Functions and Activities of Isa

The International Seabed Authority (ISA) is responsible for organizing, regulating, and controlling all mineral-related operations in the international seabed area that are outside of sovereign jurisdiction. The International Seabed Authority of India (ISA) performs the following primary functions:

  1. Deep seafloor mining is regulated.
  2. Marine environment protection from the negative consequences of mining, exploration, and exploitation.
  3. The authority also encourages maritime scientific research and holds scientific and technical training programs, seminars, conferences, and workshops.

The ISA’s most notable achievement has been the creation of laws for the exploration of poly-metallic nodules. The relevant legislation was enacted in the year 2000. Manganese, cobalt, copper, and nickel are all present in variable levels in these resources. They appear as potato-sized lumps strewn about on the ocean floor’s surface, mostly in the central Pacific Ocean but also in the Indian Ocean. In 2002, work on a new set of regulations governing the investigation of poly-metallic sulfides and cobalt-rich ferromanganese crusts, which are rich in minerals such as copper, iron, zinc, silver, and gold, as well as cobalt, began. The sulfides can be found around volcanic hot springs, particularly in the western Pacific Ocean, whereas the crusts can be found on oceanic ridges and elsewhere. In 2006, the ISA decided to create separate sets of regulations for sulfides and crusts, with sulfides taking precedence. Despite the fact that various concerns remained unsolved, it devoted the majority of its sessions in 2007 and 2008 to this work. The definition and structure of the area to be allotted to contractors for exploration, the fees to be paid to the Authority, and how to deal with any overlapping claims that could develop were among the most pressing issues. The International Seabed Authority (ISA) has been working on the “Mining Code,” a set of rules, regulations, and processes to govern the Area’s maritime mineral prospecting, exploration, utilization and exploitation. 

Regulations on Prospecting and Exploration for Poly-metallic Sulfides (adopted on May 7, 2010), Regulations on Prospecting and Exploration for Poly-metallic Nodules (adopted on July 13, 2000) and Regulations on Exploration of Cobalt Rich Ferromanganese Crusts (adopted on 27 July 2012) has been issued by the Authority till date. Environmental considerations are also at the forefront of contractors’ responsibilities when conducting exploration activities. The Authority’s current regulations include a section dedicated to the safeguarding and preserving of the marine environment in each set.

The Authority’s Regulations also include guidelines regarding pollution emergencies that pose a serious hazard to the marine environment. India is one of the top eight countries/contractors, and the Ministry of Earth Sciences is implementing a long-term programme on poly-metallic nodule discovery and exploitation. On August 18, 2017, the 23rd session of the International Seabed Authority (ISA) in Kingston, Jamaica, granted a five-year extension of India’s exclusive rights to explore poly-metallic nodules from the seabed in the Central Indian Ocean Basin (CIOB).

The Commission on the Limits of the Continental Shelf (CLCS)

According to Article 76 of UNCLOS Coastal states have the authority to define their continental shelf’s outer bounds beyond 200 nautical miles if there is topographical or geological continuity, as long as the Commission on the Limits of the Continental Shelf (CLCS) makes a recommendation that the submission be approved. Islands are significant for countries seeking an extension since demarcation of the continental shelf’s outer limits beyond 200 nautical miles can be filed using an offshore island as the baseline. They are especially important when an extension causes overlap between states with adjacent or opposite coasts as a result of disputed island claims or differing conceptions of territorial borders. In such instances, the CLCS withholds its assessment of the submitted materials in compliance with applicable clauses.

Important Provisions of CLCS

According to UNCLOS Article 76, paragraph 1, The continental shelf of a coastal state extends beyond its territorial sea and encompasses the seabed and subsoil of submerged areas throughout the natural extension of its land territory to the continental margin’s outer border, or to a distance of 200 nautical miles from baselines from which the territorial sea’s breadth is measured where the continental margin does not extend up to a distance of 200 nautical miles. After submitting the details of such limits, along with accompanying scientific and technical data, to the Commission, a coastal state may determine the outer boundaries of its continental shelf stretches for more than 200 nautical miles based on CLCS recommendations (Paragraph 8, Article 76). Furthermore, coastal states have sovereign rights to the continental shelf in order to explore, develop and exploit its natural resources (Paragraph 1, Article 77).

The CLCS’s responsibilities include reviewing and making recommendations on data and other materials supplied by coastal governments concerning the continental shelf’s outer limits in regions where those limits extend beyond 200 nautical miles, as stipulated in Paragraph 1, Article 3 of UNCLOS Annex II, and to provide technical and scientific advice if requested by the coastal state. The Commission, in accordance with Article 76(8), shall provide recommendations to coastal States on matters regarding the establishment of their continental shelf’s outer limits. A coastal State’s shelf limitations determined on the basis of these recommendations shall be final, conclusive and binding. At the same time, Article 76 paragraph 10, and Annex II Article 9 state that the subject of continental shelf delimitation between nations with opposite or adjacent coasts has no bearing on the Commission’s work. This is a consequence of Article 83, which says that the continental shelf’s delimitation between states with opposite or near coasts shall be accomplished through an agreement based on international law in the aim of obtaining an equitable resolution. The CLCS has created specific procedural norms, as stated below, to maintain adherence to its “fundamental duty” of not interfering with the delimitation of national borders. 

Submissions may be made and will be reviewed in line with Annex I, according to Rule 46 where there is a disagreement over the continental shelf’s delimitation between adjacent or opposite states, or in other circumstances of unresolved land or maritime disputes. In the event of a dispute, the annex offers comprehensive regulations on how the CLCS should treat any submissions. In the event of a dispute over the continental shelf’s delimitation between adjacent or opposite States, or other unsolved land or maritime issues and disputes, the Commission must be (a) informed of such conflicts or disputes by the coastal states providing such submission, and (b) assured by the coastal states providing such submission that the submission or proposal is not prejudicial to matters relating to boundary delimitation by the coastal states making the submission. The following Paragraph specifies that a coastal state may make a “partial submission” for a part of its continental shelf to avoid prejudicing questions about state boundary delimitation. According to Paragraph 4, two or more coastal States may make joint or separate submissions by agreement, without regard to the delimitation of boundaries between them, or with an indication, using geodetic coordinates, of the extent to which a submission is not prejudicial to matters regarding the delimitation of boundaries with other state parties. In circumstances where a land or marine dispute exists, the Commission will not examine a proposal made by any of the states involved in the dispute, but it may take consideration into submission if all states that are parties to the dispute give prior approval.

According to Annex III of the Rules of Procedure, countries requesting to extend the continental shelf beyond 200 nautical miles must submit an executive summary, main body (including scientific analysis), and supporting technical data, to the CLCS.

Major changes adopted y UNICLOS Convention of 1982

Breadth of territorial sea 

UNCLOS I could not prescribe the limit in view of the divergent views taken by the States. However, the convention of 1982 (UNICLOS III) has settled the controversy by providing under Article 3 that every State has the right to establish its territorial sea’s breadth up to a limit that does not exceed 12 nautical miles as measured from its baselines. The breadth of the territorial sea as provided under the convention on the Law of the Sea of 1982 is acceptable to most of the States. About 90 states including India have adopted legislation extending the maximum breath of the territorial sea to our nautical miles. The normal baseline for measuring the territorial sea’s breadth is the low waterline along the coast as marked on the large-scale charts officially recognized by the Coastal states. However, in the case of islands situated on tolls or of islands with fringing reefs, the baseline is the seaward low watermark of the reef, as indicated by the relevant symbol on charts officially recognized by the Coastal states. (Article 6) 

Article 15 of the 1982 Convention lays down that if the coasts of two states are opposite or adjacent to each other, neither State has the, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the territorial seas’ breadth of the two States is measured. With the exception of cases of historic title or other unusual special circumstances, the above rule applies to delimit the territorial seas of the two states in a manner that is at variance therewith. This provision is identical to Article 12 paragraph one of the 1958 convention regarding the Territorial Sea and the Contiguous Zone.

Innocent passage 

The territorial sea is open to merchant vessels of all governments for navigation, as per international law. Such ships have the right of innocent passage through a state’s territorial sea. Thus, every state has the authority to make a demand that in time of peace its merchant men may inoffensively pass through the territorial sea of every other state. The above rule was incorporated in the Geneva Convention on the Territorial Sea and Contiguous Zone of 1958 under Article 14 which provided that the right of innocent passage through the territorial sea shall be enjoyed by ships of all States. The same provision has been laid down under Article 17 of the Convention of 1982 by stating that ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea. The consequence of the above right is that no State can levy tolls for the mere passage of foreign vessels through its territorial sea. Although the littoral state may spend money on the election and maintenance of lighthouses and other facilities for safe navigation within its territorial sea, it cannot make foreign vessels merrily pass pay for such outlays or impose any requirement which have the practical effect of denying or impairing the right of innocent passage. Any attempt on the part of a Coastal state to prevent or to hamper innocent passage through the territorial sea in time of peace is unlawful.

Contiguous zone

The limit of contagious zone was provided in the Geneva Convention of 1958. It was to stretch 12 miles from the baselines from which the territorial sea’s breadth is measured. Thus, the concept of contiguous zone is meaningless for those states which had claimed the territorial sea up to 12 miles. They assimilated the limit of the contiguous zone into the territorial sea. The limit of the contiguous zone has been extended by the Convention of 1982 which provided under paragraph two of Article 33 that it may not stretch beyond 24 nautical miles from the baselines from which the measurement of territorial sea’s breadth is taken. Thus, the area of the contiguous zone would be 12 miles beyond the territorial sea. Since the Convention of 1982 has made the concept of the exclusive economic zone, the contiguous zone is no longer described as being a part of the high seas. Since Article 33 is permissive, and since the contiguous zone is entirely in the area of the exclusive economic zone where such a zone is claimed, it is perhaps doubtful whether a state is required to formally claim or proclaim a contagious zone as a precondition of the contiguous zone jurisdiction.

Continental shelf

The Convention of 1982 has defined the term continental shelf under paragraph one of Article 76 as, “The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” The definition has laid down one criterion for fixing the limit of the continental shelf, that is, it shall stretch to the continental margin’s outer border throughout the natural prolongation of its land territory. Where The continental margin’s outer edge extends beyond 200 nautical miles from the baselines from which territorial waters’ breadth is measured, the coastal state, in accordance with paragraph seven of Article 76 shall delineate the self’s outer limits by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitudes and longitude.

“For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 percent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base” (Article 76, Para 4)

According to Para 5 of Article 76, “The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 meter isobath, which is a line connecting the depth of 2,500 meters.”

The continental shelf’s outer boundary shall not exceed 350 nautical miles from the baselines from which the territorial sea’s breadth is measured, notwithstanding the provisions of paragraph 5. Submarine elevations which are natural components of the continental edge, such as plateaux, rises, caps, banks, and spurs, are not included in this paragraph. 

Exclusive Economic Zone

The EEZ was defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as a zone in the sea over which a sovereign nation has certain special rights with respect to the exploration and use of marine resources, including wind and water energy generation, as well as oil and natural gas extraction. The exclusive economic zone (EEZ) is the area close to and beyond the territorial sea. It can reach a maximum distance of 200 nautical miles from the baseline. The EEZ does not cover the territorial sea, nor does it extend beyond 200 nautical miles to include the continental shelf. The low-water line along the coast, as represented on large-scale charts officially certified by the coastal state, is usually used as the baseline. The contiguous zone is included in the EEZ. The country possesses natural resource rights within the EEZ. For a variety of reasons, including environmental protection, the country has jurisdiction over some activities. It must also respect the rights of other countries in the EEZ, such as navigational freedom. The territorial sea differs from the EEZ in that the former grants full sovereignty over the waters, whereas the latter is just a “sovereign right” that refers to the coastal nation’s rights beneath the sea’s surface. The surface waters are international waters.

In the EEZ, the coastal state has the following rights:

  1. Explore and exploit natural resources, as well as conserve and manage them (living or nonliving).
  2. Wind, currents, and water can all be used to generate energy.
  3. Establish and utilize man-made islands, structures, and installations.
  4. Conduct scientific research in the ocean.
  5. Protect and preserve the aquatic ecosystem.

Waters of Archipelagic State

Convention of 1982 has for the first time created a regime for Archipelagic States and waters of such states. The term ‘island’ means a naturally formed area of land, surrounded by water which is above water at high tide. Archipelago means a group of many islands. The Convention of 1982 defines the term archipelago a group of islands, including sections of islands, interconnecting seas, and other natural features that are so intimately linked that the islands, quarters, and other natural features form an essential geographical, economic, and political unit, or have been historically recognized as such. The Convention of 1982 under Article 47 provides that straight archipelagic baselines can be drawn between the outermost points of the archipelago’s outermost islands and the archipelago’s drying reefs by an Archipelagic State. The consequence of the above provision is that the archipelagic state’s sovereignty extends to the waters thus enclosed, to the superjacent airspace, the bed and subsoil thereof and the resources therein contained. However, the following conditions are required to be met –

“1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 

2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 percent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 

3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.

4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. 

5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State. 

6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.” (Article 47)

The archipelagic states’ sovereignty extends to all waters encircled by archipelagic waters, regardless of depth or distance from the coast. The sovereignty extends to the airspace over the archipelagic waters, as well as their subsoil, seabed, and the resources contained therein.

However, archipelagic states shall exercise sovereignty subject to certain restrictions laid down in the convention. To begin with, archipelagic governments must adhere to existing agreements with other nations. Second, in certain places falling within archipelagic waters, it shall acknowledge traditional fishing rights and other legal activities of the directly adjacent bordering states. Third, an archipelagic state must respect existing submarine cables laid by other countries that traverse across its waters. Fourth, all ships from all countries have the right to innocent passage through archipelagic waters.

Conclusion 

The UN Convention on the law of the sea is based on a consensus of the contracting states. Often called the constitution for the oceans, it reflects customary international law and is one of the most significant and visionary international instruments of our time. The new text has a broader scope in that it addresses all aspects of maritime areas, as well as their actions and repercussions (various kinds of pollution, for example). While developing new regulations, it embraced all of the proven facts in the four previous conventions within a wider global perspective. Its introduction expresses the global view that has been taken that the ocean space challenges are inextricably linked and must be handled as a whole. As a result, the Convention confirms pre-existing maritime zones, from the shore to the open sea, and from the surface to the bottom, or, in the case of Exclusive Economic Zones, from the surface to the seabed. From legal freedom at sea through the free seas to the legal order for the seas and oceans today, we have come a long way. But, the challenges facing legal order for the seas and oceans are constantly changing. The law of the sea has to be further developed continuously to promote peaceful usage of the seas and oceans, equitable and efficient resource utilization, conservation of living resources, and research, protection, and preservation of the maritime environment.

References 

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