The waterbodies are vast and covers almost around 75% of the earth’s area. The oceans and seas are important as they provide various minerals and metals. The vast oceans and seas not only provide the minerals and metals but also petroleum and seafood but also are the mode of transportation. As a fact that which we can know from history that oceans were the used for transportation of mercantile as well as armies. With more than 200 countries, every country wants to have more and more of the area of ocean under their control. In order to avoid the conflict for the waterbodies there was a dire need for laws that would be governing the oceans and seas.
The “Freedom of Sea” was the concept that was governing the law of sea. According to the Freedom of Sea concept only a narrow part of the ocean which was adjacent to the coast of the nations, therefore the nations were allowed to have limited control of the ocean. So, with the advancement of technology the nations started fishing far from coast and commercial extraction of minerals and other resources began. But the Freedom of Sea wasn’t able to restrict the nations to the narrow space of ocean given to them. Hence, it failed.
In the year 1958, 1960, and 1973- 1982, several United Nations conferences were conducted on the law of sea. The third conference was a comprehensive treaty instrument and was adopted in 1982 which was known as United Nations Convention on the Law of Sea. The United Nations Convention on the Law of Sea comprised of various topics such as the distance of continental shelf, economic zone, seabed, territorial waters, protection of flora and fauna inside the sea, along with the controlling the pollution to the marine environment.
FEATURES AND IMPORTANT FUNCTIONS OF UNCLOS
The United Nations Convention on the Law of Sea (UNCLOS) have a total of 18 parts and 9 annexes. In the year 1994 and 1995, two agreements were added to the United Nations Convention on the Law of Sea. Some of the important features and functions that the United Nations Convention on the Law of Sea are: -
Internal waters i.e the all the water and waterbodies that are inside the country. The country is free to set and regulate laws and use the resources of such Internal waters. No foreign ship has the right to pass in the internal waters without the permission of the Flag State.
Territorial waters have an extension of 12 nautical miles and the coastal country is given the authority to make and regulate laws and use the resources within those 12 nautical miles. The military ships are given a transit passage to navigate through the territorial waters where as civilian ships are given the right of innocent passage.
In part IV of the convention an important terminology called as archipelagic island is defined and how these said islands have internal water for these islands called as archipelagic waters is calculated.
In part II of the convention the extent of contiguous is determined as 12 nautical miles from the territorial waters and within this the coast nation can make and regulate law only in areas of customs, taxation, immigration and pollution.
In part V of the convention the exclusive economic zone is determined as 200 nautical miles from the baseline and the coastal nation has the sole authority to exploit the resources within that zone.
In part VI of the convention the area till which the land is reaching from the baseline of the coastal nation or 200 nautical miles from the baseline, the greater distance is taken into consideration.
States which are land locked have the right of access to and from the sea and enjoy freedom of transit through the territory of transit States.
Nations are bound to prevent and control pollution of waterbodies and are liable for damage caused by such pollution as it is an international obligation.
In part IX of the convention the seabed authority is given power to direct seabed exploration and mining of minerals in the seabed.
PAST AND EMERGING ISSUE(S) FOR UNLCOS
Being an international organization, the United Nations Convention on the Law of Sea has got more issues cropping up before it than expected. In this part we will get to know about the issues that were faced by UNCLOS during its formation as well as the emerging issues and the issues that are of recent times. The issues are discussed and answered in detail in the forthcoming pages.
How to determine the extent of territorial waters of nations with opposite coast or adjacent coast?
What are the special circumstances and historical titles under Article 15 of UNCLOS?
On what basis does the limitation of continental shelf be decided for adjacent coast nations?
Recently a ship fleet of United States crossed through the territorial waters of India. This incident took place in April 2021. Whether India can take any steps against US?
Whether any steps can be taken by the United Nations with regards to the issue of south china sea?
HOW TO DETERMINE THE EXTENT OF TERRITORIAL WATERS OF NATIONS WITH OPPOSITE COAST OR ADJACENT COAST?
The Article 12 of the convention of the Territorial Sea and Contiguous zone was the source of the Article 15 of the United Nations Convention on the Law of Sea. When two states have an overlap of the Territorial water or of the Exclusive Economic Zone then a median line is considered and such median line is equidistant from the coast of the opposite nation coast. An equidistant line is an important legal principle which helps in settling the issues or disputes that arises in maritime boundary. None of the countries which has ratified the United Nations Convention on the Law of Seas has ever challenged the equidistance principle so it can be said that the article 15 of United Nations Convention on the Law of Seas has been fulfilling its purpose. The Article 15 of the United Nations Convention of the Law of Seas combines the principles of equidistance and historical titles and considers the special circumstances.
WHAT ARE THE SPECIAL CIRCUMSTANCES AND HISTORICAL TITLES UNDER ARTICLE 15 OF UNCLOS?
The Article 15 of the United Nations Convention on the Law of Seas gives provision of special circumstance and that is only applicable for small islands and archipelagic islands. Here the using the equidistant rule would be unfair to the countries and it would be difficult to determine the median line. Therefore, a partial effect will be provided that is the equidistance median line will be adjusted accordingly but the important part is that the article 15 does not provide how to determine what is a special circumstance as it varies from case to case.
The Article 15 of the United Nations Convention on the Law of Seas also considers the presence of historic titles. The historic titles as the name suggest denotes the sovereignty of a nation over a land or waterbody which is acquired by that nation through historical acquisition.
ON WHAT BASIS DOES THE LIMITATION OF CONTINENTAL SHELF BE DECIDED FOR ADJACENT COAST NATIONS?
The United Nations Convention on the Law of Seas does not provide any specific rule or method for the delimitation of the continental shelf between adjacent coast nations. The UNCLOS provides that delimitation shall be done according by agreement on the basis of International Court of Justice’s Article 38. Under Article 38 of the Statues of the International Court of Justice, International law has five sources:
General principles of law
Judicial Decisions or Precedents
The General principles of law recognized by civilized nations are mostly interpreted and are used as international law for the delimitation of continental shelfs. But then again not all the countries have domestic laws that can be used in reference of continental shelfs. Therefore, customs and bilateral or multilateral treaties are very much important and are mostly used by the nations when it comes to delimitation of continental shelfs. And for customary rules to be proved there must be some kind of precedents or writer view regarding the custom. Hence one can say that the subsidiary sources of international law play a vital role in the delimitation of continental shelfs
The case of North Sea Continental shelf gives out guidelines for delimitation of continental shelf between adjacent nations. The guidelines laid down are as follows:
delimitation is to be affected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other;
if, in the application of the preceding sub-paragraph, the delimitation leaves to the Parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction, user, or exploitation for the zones of overlap or any part of them;
RECENTLY A SHIP FLEET OF UNITED STATES CROSSED THROUGH THE TERRITORIAL WATERS OF INDIA. THIS INCIDENT TOOK PLACE IN APRIL 2021. WHETHER INDIA CAN TAKE ANY STEPS AGAINST UNITED STATES?
On 10th April 2021, United States navy consisting of warship was continuously observed performing operations near Lakshadweep. It was declared by the United States Navy that the operation was a “Freedom Of Navigation Operations” (FONOPs). And it is said that India’s requirement of taking prior consent is not consistent with that of International Law.
Yes, in my opinion India can take steps by either resolving the matter with United States by diplomatic talks or by taking the matter to the International Court of Justice. India is a part of the United Nations Convention on the Law of Seas from the year 1955 and according to it no other state has any authorization to make any kind of military exercise in the Territorial Water or in the Exclusive Economic Zone without the consent of the Coastal Nation. Even if United States has not ratified the United Nations Convention on the Law of Seas that is not an excuse to take military warships which have explosives and other materials and conduct operations of military form.
WHETHER ANY STEPS CAN BE TAKEN BY THE UNITED NATIONS WITH REGARDS TO THE ISSUE OF SOUTH CHINA SEA?
The south china sea dispute has been going on for a long period of time and the dispute is not only for the Waterbody but is also for the islands. The dispute is among Brunei, China, Taiwan, Indonesia, Malaysia, Philippines and Vietnam. Each nation wants to have the south china sea to themselves because the of retaining and exploiting the resources such as fishery, oil and natural gas, minerals etc. With the depletion in the quantity of resources in the inland, the nations want to expand their Extra Economic Zone and Territorial Waters.
In the recent period, China has been building islands on the south china sea so as to claim more Extra Economic Zone for itself. China being the most powerful nation among the said nations has been taking advantage of its military superiority. Recently China has started drilling in the south china sea and has claimed that it has drilled in its own Territorial waters.
Since all the nations involved in the dispute have ratified the UNCLOS. Therefore, United Nations should take some action and stop the exploration and exploitation of the south china sea for oil and natural gas till the dispute is resolved by treaties or diplomatic talks.
The United Nations Convention on the Law of Seas is considered as an important body as it regulates the law of the waterbodies and have achieved a lot of recognition through its work such as giving out provisions on delimitation of the Exclusive Economic Zone and Territorial Waters and Continental Shelfs between nations opposite or adjacent to coasts. It has defined and successfully implemented the extent of Exclusive Economical Zone and Territorial Waters etc. But since the United Nations Convention on the Law of Seas is only given the right to impose monetary sanctions even if the act of one nation is of criminal nation. With more than 200 countries in the world only 168 countries are signatories to the conventions and further more one of the most powerful nation of the world United States of America is not a signatory and has not ratified the United Nations Convention on the Law of Seas. The United States has been doing and carrying out “Freedom of Navigation Operations” for a long period of time and no country has objected to it and even the United Nations have not taken any step to stop that activity. Similarly, China has been taking advantage of the South China Sea which is a disputed waterbody but the United Nations has not been able to stop the Nation from doing so. This shows that even the United Nations Convention on the Law of Seas have done some remarkable work but is still a failure at some aspects.
Auroshis Kumar Mohanty
3rd Year, BBA LLB
Xavier Law School