Author – Sibani Nandini Dash

Abstract

My subject is “THE LAW OF THE SEAS” – The “Law of the Sea” is a corpus of international law that regulates states’ rights and responsibilities in maritime areas. It addresses issues such as navigational rights, marine resource claims, and authority over coastal seas. While modern maritime law is based on a variety of international customs, treaties, and agreements, it is largely derived from the “United Nations Convention on the Law of the Sea (UNCLOS)”, which has been in effect since 1994 and is widely regarded as a codification of international marine customary law and is sometimes referred to as the “constitution of the oceans.”

The “Law of the sea” is a field of international law concerned with maritime public order. The United Nations Convention on the Legislation of the Sea, which was signed on December 10, 1982, codifies much of this law. The agreement, which has been dubbed a “constitution for the seas,” aims to codify international law governing territorial waters, sea lanes, and ocean resources. It entered into force in 1994 after 60 countries had approved it; by the early twenty-first century, it had been ratified by more than 150 countries.

Every coastal country may establish an exclusive economic zone (EEZ) extending 200 nautical miles (370 kilometres) from shore outside its territorial seas. The coastal state has the power to exploit and regulate fisheries, build artificial islands and facilities, utilise the zone for other commercial purposes (e.g., wave energy generation), and govern scientific research within the EEZ. Foreign vessels (and aeroplanes) may otherwise freely navigate through (and over) the zone.

All countries are welcome to use the area’s waters and airspace, with the exception of acts forbidden by international law (e.g., the testing of nuclear weapons). The International Seabed Area (commonly known as “the Area”) is the area beneath the high seas for which a separate and thorough legal framework was established by the 1982 convention. This regime was initially unacceptably restrictive for industrialised countries, owing to the high level of regulation required, and it was significantly modified by a supplementary treaty (1994) to address their concerns. The minerals on the ocean floor beneath the high seas are now considered “the common heritage of mankind,” and their exploitation is overseen by the International Seabed Authority under the new regime (ISA). Any commercial seabed exploration or mining is done by private or state-owned companies that are controlled and approved by the ISA, albeit only exploration has been done thus far. If and when commercial mining commences, a worldwide mining company will be developed, with sites of comparable size and value to those mined by private or state-owned corporations. Fees and royalties from commercial and state-owned mining companies, as well as any profits produced by the global company, would go to developing countries. Private mining businesses are encouraged to market their technology and knowledge to multinational corporations and underdeveloped countries.

Keywords: – Maritime Law, EEZ, sea, common heritage, rights.

The Law Of The Sea

It serves two purposes: first, as a means of transmission, and second, as a large pond of both living and non-living wealth.

“The principle that runs across the law of the sea is that “the land governs the sea,” which means that the land territorial situation defines the beginning point for resolving a coastal state’s nautical rights.”

The Portuguese claimed large swaths of the high seas as part of their territorial land in the 17th century, but Grotius responded with the doctrine of the open seas, which stated that the oceans as res communis should be accessible to all nations but powerless to assumption.

The right to travel freely on the high seas quickly became a cornerstone of international law. It was legal for a coastal state to establish territorial seas, or territorial sea, around its coastline and treat it as if it were a permanent part of its territory.

Other dominion zones have been expanding outside of the territorial sea. Coastal states can now play specific jurisdictional roles in the adjacent zone, and international law is increasingly favouring the approval of even larger zones in which the coastal state can enjoy certain rights to the discharge of other nations, such as fishery zones, continental shelves, and, more recently, rogue states, exclusive economic zones.

The gradual shift in maritime law toward the expansion of the territorial sea (the accepted maximum limit is now 12 nautical miles, up from 40 years ago, 3 nautical miles), combined with the frequent claiming jurisdictional rights over certain areas of the high seas, reflects a fundamental shift in the emphasis of states’ attitudes toward the sea.

The primary notion of high seas independence has been modified as a result of a better awareness of the materials available in the oceans and seabed outside territorial waters. “Parallel to the growing trend of asserting ever more claims over the high seas, there has been a push to establish a “common heritage of mankind” regime over the high seas’ seabed”. As a result, the law of the seas has been in a condition of unreliability for decades as a source of contention truths have shown themselves.

“The force of leading the law of the sea Conference, which lasted from 1974 to 1982 and featured a large number of states and international organisations, covered a wide range of economic, political, and strategic issues”. Western powers were eager to protect by obstructing any navigation reduction of the liberty of progress, particularly “through international cross-border trade, and to protect their economic interests by unfettered exploitation of the high seas and deep bottom resources”. Other countries and groups of countries wanted their special interests are safeguarded. States that are landlocked or geographically disadvantaged, land states, and coastline states, for example, would be included here. The end outcome of this kaleidoscopic range of interests was extremely clear, leading to the final draft’s “package offer” notion.

 “According to this approach, for e.g., the Third World agreed to the progress through straits and add to continental shelf rights beyond the 200-mile limit from the coasts in put back for the internationalization of deep sea extract.”

Numerous of the provisions of the 1982 Convention restate the truths expressed in earlier documents, which have subsequently become standard regulation, while many new regulations were suggested. As a result, a complicated web of links exists between the many in this field states, based on customary and treaty-based rules. “All states are presumed to be bound by accepted conventional regulations, whereas only the parties to the five treaties included will be bound by the new regulation contained therein, and since some states are unlikely to adhere to the 1982 Conventions, the 1958 regulations will continue to be important”.

The Territorial Sea

The territorial sea is part of the coastal state’s territorial domain and hence immediately belongs to it. For example, all newly self-sufficient states receive a territorial sea title when they achieve independence. “There have been many theories as to the exact legal character of the territorial sea as a part of the res communis, but issue to certain rights exercisable by the coastal state, to concerning the territorial sea as parts of the coastal states territorial land subject to a right of moral passing by foreign vessels.”

“Nonetheless, it cannot be denied that the coastal state has sovereign rights over its nautical belt and extensive jurisdictional control, as defined by international law. The foundation limits the coastal state’s sovereignty by allowing foreign nations clear passage through the territorial sea; this distinguishes the territorial sea from the state’s intramural seas, which are totally within the coastal nation’s limitless jurisdiction”.

If the coastal state foreign nationals and ships have expressed a wish to do so. may be barred from fishing in its territorial waters, and these activities may be reserved for the benefit of its own citizens. Similarly, the coastal state has a lot of power on things like certainty and custom. “It should be noted, however, that how far a state chooses to exercise the jurisdiction and sovereignty to which it may lay claim under international law will be determined by the wording of its own municipal legislation, and some states will not wish to exercise the full range of powers available to them under international law”.

The right of innocent passage

The right of foreign merchant ships to travel through a coast’s territorial sea on a continuous basis has long been recognised under customary international law, despite the coast state’s sovereignty.

However, the precise area of the theory is unfocused and amenable to the contrary explanation, especially in regard to the need that the passing be unambiguous. The coastal state may not charge for such passing until the ships are in remission for certain services, and passing ships must follow the coastal state’s norms, including as navigation, to the extent that they are consistent with international law.

Jurisdiction Of Foreign Ships

When foreign ships sail through the territorial sea, the coastal state may only exercise its criminal jurisdiction in certain circumstances, such as the arrest of any individual or an investigation into any topic relating to a crime committed on board ship.

However, if the ship enters the territorial sea after leaving the internal seas of the coastal state, the coastal state has the option to proceed in any way indicated by its laws in terms of arrest or investigation on board ship, and is not bound by the wording of article 27. (1). “However, if the offence was committed before the ship entered the territorial sea and the ship is not entering or has not entered the inner waters, the authorities of the coastal state cannot continue. Warships and other government ships working for non-commercial purposes are exempt from the jurisdiction of the coastal state, despite the fact that they may be forced to leave the territorial sea immediately if they violate passage regulations, and the flag state will be in charge of international control in the event of loss or damage.”

The Exclusive Economic Zone

This zone arose from earlier, more unsubstantiated assertions, particularly in relation to fishing zones, as well as from the expansion of the negotiating process that led to the 1982 agreement. It tarnishes a deal struck between governments that want a territorial sea of 200 miles and others who want a more complex framework of state on the coast control.

“The debate over fishing zones was a key factor in the call for a 200-mile full economic zone. The fishing zones were not agreed upon in the 1958 Geneva Convention on the Territorial Sea, and Article 24 of the Convention does not grant exclusive fishing rights in the contiguous zone”. “But, increasing numbers of states have demanded fishing zones of extensively varying width. The European Fishing Convention, 1964, which was execute in the UK by the Fishing Limits Act 1964, if that the coastal state has the exclusive right to fish and exclusive jurisdiction in affair of fisheries in a a 6-mile belt from the baseline of the territorial sea; while within the belt between 6 and 12 miles from the baseline, other parties to the convention have the right to fish, if they had natural fished in that belt between January 1953 and December 1962.”

This was done in order to reconcile the interests of the coastal state with those of other states that could show that traditional fishing was still going on in the area. Many states have applied for “a 12-mile exclusive fishing zone” at one time / another, either for themselves or for other states, and it appears that international legislation to that effect have already been established. Indeed, in the fisheries jurisdiction cases, the international court stated that “the concept of the fishing zone, or the area in which a state may assert exclusive jurisdiction independently of its territorial sea for this purpose, had crystallised as customary law in recent years, particularly since the 1960 Geneva Conference, and that the extension of that fishing zone up to a 12-mile limit from the baseline comes into view now to be generally received”.

Concerned about the long-term impact of depleting fishing populations off Iceland’s coasts, Iceland declared a unilateral 50-mile exclusive fishing zone in 1972. The United Kingdom, the case was referred to the International Court of Justice by the Federal Republic of Germany, asking the court to rule on whether Iceland’s claim violated “International Law”.

“The court did not respond to that point, but instead decided that Iceland’s fishing rules extending the zones were not inviolable against the UK and West Germany because they had given no assent to them. Despite this, the ICJ based its decisions on the notion that there is no international law regulation that allows for the formation of a 50-mile fishing zone”.

Similarly, there appeared to be no regulation claims beyond 12 miles are prohibited, and the power of such claims is limited would be determined by all of the case’s material circumstances as well as the degree of identification by other states.

The court instead emphasised the concept of exceptional rights, which it recognised as a basis of “customary International Law”. Such rights evolved when a coastal state’s economy was reliant on coastal fisheries. “Nonetheless, developments at the UN Conference and the 1982 Convention overtook the concept. According to Article 55 of the 1982 Convention, the exclusive economic zone is an area beyond and close to the territorial sea that is subject to the convention’s legal regime”.

The coastal state in the economic zone has a number of responsibilities under Article 56, including;

Sovereign powers natural resources should be explored, utilised, conserved, and managed, both living and non-living, in the waters overlying the seabed and its subsoil, as well as other activities for the economic exploitation and exploration of the zone, such as the production of energy from water, currents, and winds. Jurisdiction over I the planning, usage, installation, and building of artificial land; (ii) marine scientific research; and (iii) the protection of the marine environment.

“Article 55 states that the zones starts from the outer limit of the territorial sea, yet by Article 57 shall not be extending beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is uniform.”

When the relevant waters between neighbouring states are less than 400 miles away, borders are required. Unless islands are nothing more than rocks that cannot support human habitation, they generate economic zones.

The other governments’ rights and responsibilities in the exclusive economic zone are outlined in Article 58. Fundamentally, these are freedom of navigation on the high seas, overflight, and the laying of underwater cables and pipelines. States are also expected to consider the rights, responsibilities, and laws of coastal states when exercising their rights and performing their duties.

“When a dispute arises over the allocation of rights and jurisdiction in the zone, the judgement must be made on the basis of equity and taking into account all relevant circumstances”. 

The coastal state is responsible for enforcing customs laws. and rules in regard to artificial islands, installation, and shape in the exclusive economic zone, according to Article 60(2). Guinea had behaved in accordance with the law of the sea Convention by applying its customs regulations to a custom space that comprised sections of the economic zone.

In the previous two decades, a wide range of states have demanded exclusive economic zones of 200 miles. Fishing zones have been indicated by a number of nations that have not made such a requirement. “It appears that the number and distribution of nations requesting economic zones is such that the existence of exclusive economic zones as a customary law regulation is firmly established”. The International Court of Justice stated in the Libyal Maltra Continental Shelf case that the organisation of exclusive economic zones is demonstrated by governments’ practise of having them become a part of customary law.

States have announced the creation of further zones over maritime areas in addition to such zones. Definite states have also claimed rights over what are known as certainty zones, but these have never been well-defined and are uncommon.

“According to a US-USSR Maritime Boundary Agreement signed on June 1, 1990, each party would exercise sovereign rights and jurisdiction obtained from the other party’s exclusive economic zone jurisdiction in a “special area” on the other party’s side of the Maritime Boundary to ensure that all areas within 200 miles of either party’s coast would be protected. Jurisdiction over three special areas within the USSR’s 200-mile economic zone and one special area within the US’s 200-mile economic zone appears to have been transferred in this way”.

The Continental Shelf

The continental shelf is a geographical term that refers to the cliffs that extend into the waters from the continental mainland, which are only covered by a thin layer of water, gradually vanishing into the depths of the ocean. These shelves cover about seven to eight percent of the total ocean their length varies widely from place to place, as does their surface area. The shelf off the west coast of the United States, for example, is just around 5 miles broad, whereas the North Sea and Persian Gulf’s whole undersea region is shelf.

The most important aspect to remember the continental shelves are abundant in oil and gas resources, frequently used as big fishing grounds. “This restores a wave of assumption by coastal nations in the years after WWII, which gradually changed the legal status of the continental shelf from being part of the high seas and accessible to all states unless it is currently identified as exclusive to the coastal state”.

The Truman Proclamation of 1945 was the administration’s first step, and it set in motion a series of similar and more sweeping demands. “ This pointed to the automation capacity to utilize the riches of the shelf and the need to establish a identified jurisdiction over such resources, and proclaimed that the coastal state was entitled to such jurisdiction for a number of reasons: 1^st, because application or conservation of the resources of the sub soil and seabed of the continental shelf depended upon collaboration from the shore; 2^nd, because the shelf itself could be regarded as an extension of the land mass of the coastal state, and its resources were often merely an addition into the sea of deposits lying within the territory; and finally,  because the coastal state, for reasons of security, was profoundly interested in activities off its shores which would be necessary to utilize the resources of the shelf.”

The “US government” demonstrated i.e., considered the “natural resources of the subsoil and seabed of the continental shelf beneath the high seas but adjacent to the US coasts as appertaining to the United States, subject to its authority and control” in an appropriate manner. Nonetheless, the “status of the waters over the continental shelf as high seas would be unaffected”.

“This sequence resulted in a slew of assets by governments to their continental shelves, some of which were similar to the US assertions and others which were substantially broader”.

With no continental shelf, Chile and Peru wanted Up to 200 miles from their coasts, they have authority over the seabed, subsoil, and seas, despite strong opposition from numerous countries. For many years, the problems were discussed, eventually culminating to the Geneva Convention on the Continental Shelf in 1958.

In the North Sea Continental Shelf cases, the court noted that: “States have two sources of rights with regard to the seabed, albeit declarations with regard to the economic zone, as opposed to the continental shelf, must be made specifically. It’s also feasible that the shelf’s geographical extent differs from that of the 200-mile economic zone, as will be revealed.”

Jurisdiction On High Seas

The plan of the ship’s nationality, and the flag state’s resulting jurisdiction over the ship, has been the foundation of maintaining order on the high seas. It is, in essence, the flag state that will apply the rules of not only its own municipal law, but also international law. Many of the interests and rights available under the high seas law regime will be denied to a ship without a flag. 

Each state must specify the conditions that must be met in order for ships to be granted its nationality, for ships to be registered on its territory, and for ships to be allowed to fly its flag.

“The nationality of the ships is determined by the flag they fly, but Article 91 of the 1982 Convention also stipulates that the state and the ship must have a “genuine link.” This article, which restores “a well-established rule of general international law,” was intended to prevent governments from using flags of convenience.”

This allows the ships to operate at a very minimal cost. However, it is unclear what constitutes a “genuine relationship” and how it might be used to prevent exploitation of article 5’s provisions. Some countries, like as the United Governments, maintain that the desire for a “genuine relationship” just entails a duty to exert effective authority over the ship, and that it is not a requirement for the grant, or the receipt of this grant of nationality by other states.

“In 1960, there was an opportunity to discuss the meaning of the provision in the IMCO case.” “The International Court of Justice was asked to define the term “biggest ship-owning nations” for the purpose of forming the Inter-Governmental Maritime Consultative Organization’s committee”. To allow Liberia and Panama to be voted into the committee, “it was decided that the phrase solely referred to registered tonnage”.

 Regrettably, the occasion was not used to address the issues of benefit flags or the interpretation concerns and uncertainty surround the use of the term “real link” in the context of true ownership of the ships in question.

“The UN meeting on the terms of the official list of ships was called in July 1984 under the auspices of the UN Conference on Trade and Development, and an agreement was signed in 1986. Its goal is to disseminate benefit issue flags, bearing in mind that by early 1985, about a third of the world’s commerce fleet was flying such flags. It is stated that flag states provide for the ownership of ships flying their flags in their laws and rules, and that such provisions should include adequate provisions for participation by nationals as ship owners, and that such provisions should be sufficient to allow the flag state to exercise effective jurisdiction and control over ships flying its flag.”

The flag state’s behaviour, which was “at all times material to the issue,” was a significant consideration in determining a ship’s nationality or registration. The panel further determined “that the requirement for a genuine link was in order to preserve successful applications of the flag state’s duties, rather than to build a foundation on which the ability to prove the regulation of ships in a flag state might be disputed by other states”.

Conclusion

As a result, there is currently a wide range of appropriate marine allocation concepts, whether derived from customary law or treaties. “Regardless of whether the allocation is for the territorial sea, continental shelf, or economic zone (or the latter two combined), the best methodology is to draw a provisional equidistance line as a starting point and then see if any relevant circumstances exist that might warrant a change in that line in order to achieve an equitable result.” As a concept of worth or clarity, the audacity in favour of the sentence is to be commended.

Case law provides a range of unambiguous suggestions as to the meaning of relevant situation, or the basis, that must be considered. “Equity is not a method of allocation and nature cannot be totally reformed, but some modification of the provisional equidistance line may be justified for the cause of, for e.g.  ‘abating the effects of an incidental particular feature from which an unjustifiable difference of treatment could consequence.”

The following concept can be noted-

In the economic zone, the delimitation should prevent trespassing by one party on the natural continuation of the other or its equal, and it should avoid, to the extent practicable, interfering with the maritime prediction of the relevant coastlines.

Where the drafting of an equidistance line may unnecessarily preconcert equidistance a state whose coast is unusually concave or convex inside the area of the delimitation when compared to that of its neighbours, the layout of the coast may be relevant.

A significant discrepancy “in the lengths of the parties’ respective coastlines may be an issue to consider when drawing an equidistance line to avoid an out of proportion and unfair result.”

“The presence of islands or other similar maritime characteristics may be significant to the situation’s equities, justifying a change to the preliminary equidistance line.”

Security considerations could be taken into account, although the exact consequences are unknown.

Resource-related issues, such as fish stock allocation, have gotten a lot of attention but haven’t been widely regarded as a relevant problem.

The parties’ previous behaviour may be meaningful, such as where there has been enough experience to establish that a provisional border has been negotiated.

In the Tunisia/Libya case, “the court held that there was a line near the coast that neither party had crossed when allowing offshore oil and gas adjustments, and that this formed a modus vivendi that was highly applicable, though in Cameroon v. Nigeria, the court highlighted that such adjustments could only be taken into account if they were based on express or tacit agreement between the parties”.