United Nations Convention on the Law of the sea | Law Optional Notes for UPSC PDF Download

Introduction 

Shipping and fishing have historically been the primary activities at sea, and as human development has progressed, technology has been increasingly utilized to meet various human needs. Additionally, the seabed has become a valuable source of resources and minerals such as natural gas, oil, sand, gravel, diamonds, and gold. With the growth of global trade in the 20th century and the ever-expanding use of the sea, the traditional principle of "Freedom of the Seas" has taken a backseat.

Codification of Maritime Law 

• Following the establishment of the United Nations (UN) in 1945, there was a recognized need, by both the UN Security Council and the Secretariat, to codify the existing rules related to maritime laws and to find a permanent solution regarding the maritime territorial limits of nations.
• In pursuit of this goal, the United Nations Convention on the Law of the Sea (UNCLOS) was adopted. UNCLOS codified the existing customary maritime rules and came into force in 1999, despite being signed in 1982.
• Since 1945, most countries around the world have transitioned from the "cannon-shot rule" to the 12 nautical miles rule. Under this rule, an area extending 12 nautical miles from a country's coastline is considered to be the exclusive maritime territory of that country. These rules are also recognized and accepted under the regulations established by UNCLOS.
• An example of a notable maritime dispute involves India and Sri Lanka, specifically the Ram Setu Bridge, which connects Dhanushkodi in India to Talaimannar in Sri Lanka.

What is UNCLOS?

UNCLOS, or the United Nations Convention on the Law of the Sea, is an international treaty that sets forth regulations and principles governing the utilization of the Earth's oceans and seas. Its primary objectives are to manage and safeguard marine resources and ensure the preservation and protection of marine life. This treaty was officially signed on December 10, 1982, in Montego Bay, Jamaica, following the United Nations Conference on the Law of the Sea, which occurred between 1973 and 1982. UNCLOS became effective in 1994.

What is the role of this convention?

• The convention plays a vital role by delineating various maritime zones, including the baseline, territorial waters, contiguous zone, exclusive economic zone, continental shelf, and the International seabed area.
• Of these zones, the exclusive economic zone stands out as international waters accessible to and usable by each nation for economic activities. Currently, it serves as the primary framework for maritime law.
• Within these international waters, there are no specified limits or boundaries imposed on commercial or marine activities.

What is the history of this convention?

• The history of this convention can be traced back to various developments in the 20th century driven by countries' interests in expanding their maritime information, utilizing natural resources, protecting fish stocks, and mitigating pollution.
• To address these concerns, the League of Nations convened a conference in The Hague in 1930. However, this gathering failed to reach a consensus on these matters.
• During the 20th century, advancements in technology, particularly in fisheries and oil production, expanded the scope of maritime activities, allowing nations to discover and exploit resources in a broader maritime domain.
• In 1945, President Harry S. Truman of the United States took a significant step by extending U.S. jurisdiction beyond its territorial waters to encompass the natural resources on the continental shelf.
• The concept of "Freedom of the Sea," originally proposed by Dutch scholar Grotius, became widely accepted in the 20th century, largely due to the dominance of European navies. According to this concept, national rights and jurisdiction over the oceans were limited to specific maritime zones extending a few miles from a country's coast, typically around 3 miles (5.6 km), as outlined in Bynkershoek's "cannon fire" rules. However, this view also recognized that the waters beyond a country's borders were considered international waters, open for all countries to use but not owned by any.
• In response to Grotius, British lawyer John Seldon put forth the idea of "Mare Clausum," suggesting that the sea could be subject to sovereign control, akin to land and territory. Seldon challenged Grotius's assumptions, contending that there was no historical precedent for treating the sea differently from land, and international law could establish national jurisdiction extending over the sea.

Territorial regulations concerning the law of the sea 

• In the realm of Customary International Law, the regulations governing maritime matters were not formally codified during a period when the ocean held immense importance as a valuable maritime asset. During this time, nations utilized the sea to assert their sovereignty, establish new trade routes, and even lay claim to new territories, often with the support of trading companies or powerful navies.
• However, as the 17th century approached, an evolving set of customary international laws began to take shape among nations. These laws clearly specified that a country's territorial boundary from its coastal waters would be limited to 3 nautical miles. Within this boundary, the nation would exercise absolute authority, and foreign vessels or ships would not be permitted to enter, except under certain restricted circumstances.
• This 3-mile regulation became known as the "cannon-shot rule," and the guidelines allowing foreign ships to enter a host nation's territorial waters under the principle of "Doctrine of innocent passage" meant that as long as a foreign vessel engaged in innocent passage, it was not allowed to engage in any activities that could jeopardize the host State's territorial integrity.

India’s position on territorial waters

India's stance on territorial waters is primarily influenced by Article 297 of its constitution and various laws pertaining to waters, the continental shelf, exclusive economic zones (EEZ), and other maritime regions. These laws outline India's jurisdiction over the waters, seabed, and the airspace above those waters. Specifically, the boundary line extends to a distance of 12 nautical miles from the nearest point on the baseline. Under this framework, foreign vessels are granted the right of innocent passage through India's territorial waters.

The South China Sea Dispute

• Background
  • Around 5000 years ago, China was ruled by the Ming dynasty, famously known for the Terracotta warriors.
  • Historical maps from the Ming period depicted the entire region along the coast of Vietnam, Indonesia, and the Philippines, bordering the South China Sea, as part of Chinese territory.
  • In modern times, the Chinese government has laid claim to these areas in the South China Sea, which overlap with the territorial waters of several Southeast Asian nations. China refers to this newly asserted boundary as the "nine-dash line" territory.
  • In 1988, the Imperial Chinese navy, with support from the Chinese air force, entered the disputed waters near the Philippines and initiated the construction of artificial islands known as the Spratly and Johnson group of islands.
  • The Philippine government strongly protested this action, asserting that the disputed area fell within the maritime boundaries of Philippine waters, and that China had violated Philippine territorial sovereignty.
  • The Philippine government made repeated requests to the Chinese authorities to halt construction in the disputed zones, but these pleas were openly ignored by the Communist Party of China. Consequently, since 1988, the Chinese government has continued to develop a series of smaller artificial islands, along with military installations, air force bases, and naval facilities, significantly strengthening the Spratly and Johnson islands.
• Legal Action
  • In 2015, the Philippine government brought the South China Sea dispute before the Permanent Court of Arbitration (PCA) for resolution. China chose not to participate in the PCA proceedings. The PCA rendered a verdict that emphatically rejected China's "nine-dash line" theory as grossly inaccurate. The court also deemed the construction of the Spratly and Johnson islands illegal. Furthermore, it found that China had violated numerous treaty obligations under the United Nations Convention on the Law of the Sea (UNCLOS) and customary international law, including Article 2(4) of the UN Charter.
• Post-Judgment Developments
  • China refused to accept the PCA's decision. Subsequently, the Chinese navy initiated the construction of large seaports in the Spratly harbor to establish a permanent presence for Chinese naval aircraft carrier fighter squadrons from the Chinese air force.
  • Since 2016, China has expanded its island-building activities into the territorial waters of Vietnam, Indonesia, and Malaysia, while maintaining its claim that the "nine-dash line" is accurate and indicating its intention to continue building more islands in the South China Sea.

Contiguous Zone

• The contiguous zone refers to the portion of the sea that lies outside and next to a coastal nation's territorial waters. In this area, the coastal nation holds certain jurisdictional rights. The concept of the contiguous zone emerged because countries couldn't effectively safeguard all their interests within their territorial sea due to limited control.
• The 1982 convention introduced the notion of an exclusive economic zone (EEZ), which encompasses and extends beyond the contiguous zones.
• As per Article 33 of the 1982 Convention, the contiguous zone's breadth should not exceed 24 nautical miles from the baseline used to measure the territorial sea area. Therefore, the contiguous zone spans 12 miles beyond the territorial sea.

India’s position on contiguous zone

India's stance on the contiguous zone involves asserting rights up to 24 nautical miles, as established in the Maritime Zones Act of 1976.

Continental Shelf

• The continental shelf, as defined by W. Friedman, is the area surrounding a continent that extends from a low water line to greater depths. It is essentially a sloping platform covering continents and islands. This submerged seabed is connected to the continental landmass and is considered an extension of that land, typically reaching depths of around 200 meters.
• Coastal nations possess limited sovereignty rights over the continental shelf, granting them the authority to explore and utilize "natural resources" rather than full sovereignty.

India’s position on the continental shelf

Regarding India's stance on the continental shelf, the Maritime Zone Act establishes that India has declared a continental shelf extending 200 nautical miles from its land. India's rights and responsibilities under this declaration align with international conventions followed by other countries. However, the government has the ability to designate specific areas within the continental shelf and take regulatory actions within those waters.

Exclusive Economic Zone

• The Exclusive Economic Zone (EEZ) is a maritime zone established by UNCLOS, in which a nation holds various rights pertaining to the exploration and utilization of marine resources, including energy generation from sources like water and wind. It extends from the baseline of a coastal state and spans up to 200 nautical miles (370.4 km) from its coastline. In geographical terms, the EEZ can also encompass the continental shelf.
• The primary distinction between the territorial sea (governed by the 12-mile rule) and the exclusive economic zone lies in the fact that while the territorial sea grants complete sovereignty over the waters, the EEZ represents a sovereign right that pertains to the coastal state's jurisdiction beneath the sea's surface.
• An illustrative instance of an exclusive economic zone is the Bombay High, located between 73 to 74 nautical miles off the Indian coast, which the Indian government utilizes for oil exploration.

India’s position on EEZ

Regarding India's position on the EEZ, Section 7 of the Maritime Act of 1976 confers exclusive rights for the purpose of exploring and exploiting natural resources within the EEZ.

Flag State Rule

• The Flag State rule is a legal requirement that mandates vessels, ships, aircraft, and submarines to be registered in a specific country. For practical purposes, they must display the flag of the country under which they are registered. This rule applies to both military and commercial ships, as well as various types of vessels such as oil tankers and cruise ships.
• Currently, Liberia and Panama have the highest number of registered ships, but a significant portion of these ships end up being decommissioned and sold as scrap in Alang, Gujarat.
• The Flag State rule principle is also recognized under Part VII Article 92 of UNCLOS (United Nations Convention on the Law of the Sea). Additionally, in environmental disputes, the Flag State rule can be invoked under Article 217(1) of UNCLOS, 1982.

Case Example: S.S. Lotus Case (France vs. Turkey, 1927)

• Background: In 1925, Turkey began expanding its foreign trade following economic liberalization led by Mustapha Kemal Pasha. Unfortunately, a collision occurred between the French vessel S.S. Lotus and the Turkish ship S.S. Bozkurt, resulting in damage to the Turkish ship and the death of 8 Turkish nationals onboard. Survivors from the Turkish ship were transported to Turkey aboard the S.S. Lotus.
• Legal Dispute: In Turkey, the captain of the French ship and the first watch officer, Monsieur Demons, were charged with manslaughter. Demons was convicted and sentenced to imprisonment and a fine. The French government demanded the release of Monsieur Demons and the transfer of his case to a French court. Turkey and France agreed to refer the dispute to the Permanent Court of International Justice (PCIJ).
• Judgment: Both the French and Turkish governments blamed each other, with the Turkish government accusing Monsieur Demons of knowingly causing the accident. The French government contended that they alone had the right to try Demons because the incident involved a French ship and a French national.
  • The PCIJ ruled that Turkey had not violated any norms of international law by initiating a case against Monsieur Demons and had the right to prosecute him.
  • After this judgment, there was significant criticism, and with the formation of the United Nations, certain changes were made to the Flag State rule.

Rights of Coastal States

Coastal states do not possess sovereignty over the ocean but instead have sovereignty rights to explore and exploit non-living resources of the ocean floor and subsoil, primarily for five years in a particular area. After this initial period, the share of production to the coastal state increases incrementally by 1/25th each year for a total of 12 years, after which it remains fixed at 7%. If coastal states choose not to explore or exploit these resources on the continental shelf, no other state can undertake such activities without obtaining the coastal state's explicit consent.

However, the rights of coastal states over the seabed do not affect the principles of freedom of navigation on the high seas or in the airspace above superimposed waters.

High Seas 

The term "high seas" refers to all areas that do not fall within the jurisdiction of an Exclusive Economic Zone (EEZ), a nation's territory, or its inland waters. This concept was first articulated by Grotius in his maxim "Mare Liberum" in 1609, which asserted that the sea could not be owned by any individual or entity.
As a result, it was generally accepted that ships had the freedom to navigate, engage in military activities, fish, and even construct artificial islands on the high seas. However, the rules regarding the high seas underwent significant changes with the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Article 87(2) of the convention outlines a limitation on the unrestricted nature of high seas freedom, emphasizing that the freedom of the high seas must be exercised with consideration for the interests of other states in their exercise of high seas freedoms.

Conclusion 

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes a comprehensive framework for governing the rights of nations in relation to the world's oceans. The International Maritime Organization (IMO) is a specialized agency of the United Nations tasked with enhancing maritime safety and preventing pollution from ships.
Life itself originated in the oceans, and even today, with continents mapped and accessible by various means of transportation, a significant portion of the world's population lives within 200 miles of the sea and maintains close connections to it.