Law of The Sea

    Earth has oceans that cover up to 72% of its surface. The understanding of the value of oceans is lesser-known to mankind. We all have been aware of the drastic changes taking place in our environment, the pollution gnawing at the very thing that is important for our survival. Not only the mere trade, economic activities carried about in these oceans are being subject to risk but also the conservation of the marine living resources is being difficult. 

    “It is a curious situation that the sea, from which life first arose should now be threatened by the activities of one form of that life.” 

    ― by Rachel Carson, The Sea Around Us

    Definition

    In order to understand the law of the sea, we need to first know the basic difference between maritime law and the law of the sea. Etymologically, maritime law and “law of the sea” are identical. However, the former term is generally applied to private shipping law, whereas the latter, usually prefixed by “international,” signifies the maritime segment of public international law.

    The law of the sea comprises the rules governing the use of the sea, including its resources and environment. It is one of the principal subjects of international law and is a concoction of the treaty and established or emerging customary law. The law of the sea covers rights, freedoms and obligations in areas such as shipping, territorial seas and waters and the high seas,  fishing, wrecks and cultural heritage, protection of the marine environment from problems like piracy and also proves to be a valuable asset for dispute settlement. Hence, making it is a very vast subject to cover. [1]

    Origin

    The doctrine of the ‘freedom of the seas’ was fragile and not proper in the early 17th century. The rights to the nations were given up to certain ‘zones’ (zones explained later in the article), these zones were measured between the coastline of the nation up to three nautical miles. Water past the boundaries of the nations was regarded to be free for use by all the countries without any prejudice and no one state-owned the right over the water. 

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    While this situation lasted into the twentieth century, by mid-century there was an impetus to extend national claims over offshore resources. Hence, the United Nations Convention on the Law of the Sea (UNCLOS) was established after thoroughly arriving at a single treaty, in the UNCLOS III conference.

    UNCLOS

    After much debate and knowing the weightage of the fact that, the ocean is supposed to be a resource which, without governing laws would be exploited thereby, resulting in eradication of its value, UNCLOS, was adopted in the year 1982. The UNCLOS included issues such as fishing and marine research.

    There was a growing concern over the toll taken on coastal fish stocks by long-distance fishing fleets and over the threat of pollution and wastes from transport vessels and oil tankers carrying noxious cargoes that plied sea routes across the globe. The threat of pollution was always present for coastal resorts and all forms of ocean life. The navies of the maritime powers were competing for a worldwide presence in surface waters and even under the sea, thereby, causing UNCLOS’s need to be established.

    Today, the United Nations Convention on the Law of the Sea (UNCLOS) 1982, also known as Law of the Sea,  works to ensure the tranquillity, collaborative, legally defined uses of the seas and oceans for the individual and common benefit of all.  [2]

    Zones

    There are five main zones, namely- Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas.

    • Baseline: Baseline is defined as, low- water line by the side of the coast, which is acknowledged by the nation along the coast.
    • Internal Waters
      1. Internal waters are waters on the landward side of the baseline from which the breadth of the territorial sea is measured.
      2. States along the coasts have the right over their internal waters, for instance, ports, harbours, rivers, etc.
      3. The right of innocent passage ceases to exist in internal waters. Innocent passage refers to travelling through the part of the ocean where there is security and peace. Although, states have the right to remove the right of innocent passage.
    • Territorial Sea: (PART II, SECTION (2)): The territorial sea reaches out to twelve nautical miles from baselines. The nations along the coasts have right over it along with the rights over the ocean floor, subsoil, and airspace.
    • Contiguous Zone:
      1.  The contiguous zone covers 24 nm measured from the baseline.
      2. It lies between the territorial and the high seas.
      3. The coastal state has the right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and territorial sea.
      4. The nations have control and right over the surface and ocean floor and not the airspace in this zone.
    • Exclusive Economic Zone (EEZ):
      1. EEZ covers 200 nm from its baselines.
      2. The coastal state has:
        • Sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, whether living or nonliving, of the seabed and subsoil.
        • Rights to carry out activities like the production of energy from the water, currents and wind.
    • High Seas:
      1.  The zone after EEZ is said to be high seas.
      2. It is said as “the common heritage of all mankind” and falls under no state’s jurisdiction.
      3. All states get to do activities which don’t cause harm to other nations and the environment, activities might include marine research, sea exploration etc.            

    Legal Provisions

    In order to understand UNCLOS better, we need to focus on some of the important legal provisions given in it for the betterment of entire ocean-related matters. 

    1. Articles 17 & 45 provide for ‘rights to innocent passage’.
    2. Article 23 includes Foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances.
    3. Article 33 specifies about contagious zones.
    4. Article 38 lays down the right to transit passage.
    5. Article 61 & 62, states the conservation and utilization of living resources, respectively.
    6. Article 69, states the rights given to the landlocked states.
    7. PART VII, as whole talks about high seas, covering various important provisions like freedom of high seas (Article 87), right of navigation (Article 90), the nationality of the ship (Article 91), duties of flag state (Article 94), definition and provisions related to piracy (Article 100-107).
    8. Articles dealing with, conservation of the marine environment, Article 194, measures to prevent, reduce and control pollution of the marine environment and Article 195, talks about the duty of not to transfer damage or hazards or transform one type of pollution into another.
    9. PART XII, Section 5 deals with rules and national legislation to prevent, reduce & control pollution of the marine environment.  
    10. PART XVIII, Section 3 talks about the conduct and promotion of marine scientific research.
    11. Lastly, under PART XV, mentions all the settlement of disputes. [3]

    Success of UNCLOS

    1. Established freedom-of-navigation rights which states that ships flying the flag of any sovereign state shall not suffer interference from other states, apart from the exceptions provided.
    2. Under Article 3, it has set territorial sea boundaries 12 miles offshore, thereby giving sovereignty to the coastal state. 
    3. Under PART V, it has set exclusive economic zones up to 200 miles offshore. The acquisition of the EEZs gave nations along the coast, rights over the assets found within the 200-mile zone.
    4. Under PART VI, set rules for extending continental shelf rights up to 350 miles offshore.
    5. Created the International Seabed Authority despite the consistent rise in the number of participants.
    6. It created other conflict-resolution mechanisms.
    7. Helped in the development of concepts such as the ‘precautionary and polluter-pays principles’ and also ecosphere -based conduct. 

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    Failure of UNCLOS

    1. Despite the legal provisions available, the scientific marine research facilities see no progress and advancement under UNCLOS. The scientific examination has been eradicated to one -third of the ocean by Marine Scientific Research authorities and nations concerned, so as to make certain that the right to obtain commercially valuable information on resources within its marine jurisdiction remains with the concerned state. This in exchange hinders the worldwide community’s capability to recognize, scrutinize and evaluate the effects of the community’s activities on the international ocean domain, and evolve scientifically diligent strategies for its feasible utilization.
    2. Despite the attempt to curb the exploitation by a few powerful nations, the well-established policy of laissez-faire concerning high seas hasn’t changed much.
    3. The attempt to regulate migratory species under the freedom provided (mare liberum) to the nations on the high seas has often resulted in conflicts between two or more nations.[4]

    Other Conventions and Organizations

    Other than UNCLOS, conventions relating to the law of the sea include- 

    1. London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, that aims to strive towards the betterment of marine conditions. 
    2. The Helsinki convention, that works for the protection of the baltic sea.  
    3. National Oceanic and Atmospheric Administration, that focuses on the conditions of the oceans, major waterways, and the atmosphere in the U.S.
    4. The international maritime organisation, that works with the objective of safe, secure and efficient shipping on clean oceans.
    5. International convention on civil liability for oil pollution damage, which is concerned with the admissibility and assessment of claims for oil pollution damages. [5]

    Conclusion 

    The Articles mentioned are more of a framework for international maritime cooperation. The working of UNCLOS can be said to be out of chaos but rather disorderly. The vast disconnection from the intended outcome of the Articles included, and the adoption of the same by the nations is clear. The need to change it with the changes and advancements in the technology is a very crucial step which needs to be taken in order for UNCLOS to function properly. Furthermore, the tensions arising in the high seas are worsening day by day turning into conflicts between nations. However, there is no doubt that UNCLOS is a step forward in the global governance of the sea and seeing a vast number of member nations of the same can be rather difficult to manage, UNCLOS has achieved a lot. 

    REFERENCES

    1. Ocean and law of the sea, available at https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/ (last visited on September 10, 2020)
    2. United nation convention on the law of the sea, available at https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last visited on September 12, 2020)
    3. Work of IMO, available at http://www.imo.org/en/OurWork/Pages/Home.aspx (last visited on September 11, 2020)
    4. David Joseph Attard, Malgosia Fitzmaurice, et.al.(eds), The IMLI manual on international maritime law(Oxford university press).

    BY- Navodita Singh | SNDT UNIVERSITY LAW COLLEGE FOR WOMEN

    7 thoughts on “Law of The Sea

    • 24 September 2020 at 11:27 pm
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      Very informative and well written.

      Reply
    • 24 September 2020 at 11:42 pm
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      Nicely written and very well covered.

      Reply
    • 24 September 2020 at 11:55 pm
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      Very informative and well explained.

      Reply
    • 25 September 2020 at 2:08 am
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      You’ve Outdone Yourself!!!!! Keep up the good work ! 🌸💜

      Reply
    • 25 September 2020 at 7:59 am
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      Highly informative

      Reply
    • 25 September 2020 at 11:34 am
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      Very well written..

      Reply
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