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  • Aditya Kumar

International Law of the Sea: An Overlook and Case Study

by: Aditya Kumar, LL.B, Lovely Professional University

Abstract

Sea is a large body of water that is surrounded by the land. It is a crucial part of human trade and commerce, voyage, mineral extraction, power generation and is also considered as an essential source of blue economy nowadays. International law of the sea is a law of maritime space that peacefully settles the global disputes on maritime boundary between or among the States and defines various jurisdictions of the maritime zones as well as the rights and obligations of the coastal States in these zones, especially with regard to the conservation of marine environment and biodiversity. The key objective of this piece of academic research is to demonstrate a brief overview of the international law of the sea with a special emphasize on the sources and legal framework of this law. This study also strives to focus the civil and criminal liability, jurisdictions, rights and obligations of the coastal states with regard to the different maritime zones. Furthermore this study delineates the rules and extent of using these maritime zones in the light of various treaty provisions on the international law of the sea where different adjudicated cases are also presented along with a profound scrutiny upon their fact, issues, judgment and reasoning.

 

► Introduction

In the international jurisdictions disputes may frequently be arisen among the neighboring coastal States regarding the delimitation of maritime boundary, exploitation of minerals or natural resources, commission of any crime in the territorial boundary of another State, etc. These disputes are generally resolved by the international courts or tribunals on the basis of complaints filed by the parties concerned following the rules of international law of the sea or following the precedents as a pivotal source of international law. This study, however, is concerned with those rules of international law usually referred to as “the law of the sea” and is intended as a starting point for research on the law of the sea. This research work especially deals with the broader area of the sea law that evidently involves consideration of matters mainly of the base line, inland waters, territorial sea, contiguous zone, Exclusive Economic Zone (EEZ), high sea and continental shelf.

 

► International Law of the Sea: Legal and Institutional   Framework

It should not be wise to presume that the law of the sea is to be found only in one place; rather the present law is a mixture of customary international law and treaty law, both bilateral and multilateral.

 

► The Four Geneva Conventions on Territorial Waters and Contiguous Zone, 1958

 

The first UN Conference on the law of the sea was held in 1958 in Geneva. In this conference four multilateral conventions covering various aspects on the law of the sea were adopted: 1) Convention on the Territorial Sea and Contiguous Zone; 2) Convention on the High Seas; 3) Convention on Fishing and Conservation of Living Resources; and 4) Convention on the Continental Shelf. All these conventions are in force, though in many aspects they have been superseded by the 1982 UN Convention on the Law of the Sea which is mainly of general application, i.e., it is not confined to one specific aspect of the law of the sea. For non-parties to the 1982 Convention and for those matters on which the 1982 Convention is silent, the 1958 Conventions will continue to govern the relations of States that have ratified them. For States that are neither party to the 1982 Convention nor to the 1958 Conventions, the relevant law is the customary.

 

► The UN Convention on the Law of the Sea (UNCLOS, 1982)

 

The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and development of contemporary international law governing the sea in time of peace. The UNCLOS, also called the Law of the Sea Convention, is a global agreement that resulted from the third UN Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. This treaty is considered to be the “constitution of the oceans” and represents the result of an unprecedented, and so far never replicated, effort at codification and progressive development of international law. Maritime jurisdictions are now governed mainly by the 1982 UN Convention on the Law of the Sea. The comprehensive 1982 Convention that replaced the 1958 four conventions on the law of the sea consists of 320 articles and 9 annexure was concluded in 1982. The UNCLOS is intended to govern the use of oceans for fishing, shipping, exploration, navigating and mining and it is the most complete treaty in public international law that covers a range of law of the sea topics, e.g. delimitation of maritime boundaries, maritime zones, marine environment protection, marine scientific research, piracy and so on. This Convention represents the most significant development in the whole history of the rules of international law regarding the high seas.

 

► Salient Features: The UN Convention on the Law of the Sea, 1982

 

The maximum width of the territorial sea is fixed at 12 miles and that of the contiguous zone at 24 miles; b) A “transit passage” regime for straits used for international navigation is established; c) States consisting of archipelagos, provided certain conditions are satisfied, can be considered as “archipelagic States”, the outermost islands being connected by “archipelagic baselines” so that the waters inside these lines are archipelagic waters; d) A 200-mile exclusive economic zone including the seabed and the water column, may be established by coastal States in which such States exercise sovereign rights and jurisdiction on all resource-related activities; e) Other States enjoy in the exclusive economic zone high seas freedoms of navigation, over flight, laying of cables and pipelines and other internationally lawful uses of the sea connected with these freedoms; f) A rule of mutual “due regard” applies to ensure compatibility between the exercise of the rights of the coastal states and of those of other states in the exclusive economic zone; g) The concept of the continental shelf has been confirmed, though with newly defined external limits; h) The International Seabed Authority being the “machinery” entrusted with the supervision and regulation of exploration and exploitation of the resources; i) A series of very detailed provisions deal with the protection of the marine environment setting out general principles and rules about competence for law-making and enforcement as well as on safeguards; j) Detailed provisions concerning marine scientific research, based on the principle of consent of the coastal State, consent which should be the norm for pure research and discretionary for resource-oriented research; k) The ocean bottom beyond national jurisdiction is proclaimed to be the “Common Heritage of the Mankind”.

 

► Bilateral/Multilateral Treaties or Customary International Law

 

Besides the above mentioned two vital international instruments, the customary international law and other bilateral or multilateral agreements are also the outstanding source of international law of the sea. Regarding the customary international law, it is already noted that the 1958 and 1982 UN Conventions on the Law of the Sea have contributed a lot to the development of the customary international laws. There may be other rules of customary international law that may not precisely be reflected in any conventional text nor owe their origin to incorporation in such a text. These as with all customary rules, bind States in the ordinary manner.

 

► International Tribunal for the Law of the Sea (ITLOS)

 

After the entry into force of the UN Convention on the Law of the Sea on 16th November, 1994 strong efforts were made for the establishment of an International Tribunal for the Law of the Sea (ITLOS). In August 1996, 21 Judges of the Tribunal were elected on the basis of “equitable geographical distribution”. The ITLOS is an intergovernmental organization created by the mandate of the Third UN Conference on the Law of the Sea. It was established by the UN Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on 10th December, 1982. The ITLOS was ultimately established on 21st October, 1996 of which jurisdiction is not compulsory and is optional or based on the consent of the States. The Tribunal consists of 21 members, elected from among the highest reputation of fairness and integrity and a recognized competence in the field of the law of the sea. The Tribunal is situated in Germany, established a global framework for law over “all ocean space, its uses and resources”. The Tribunal is open to all the state parties to the 1982 UN Convention on the Law of the Sea.

 

► UNCLOS: Various Jurisdictions of the Maritime Zones

 

Under both the Geneva Convention on Territorial Sea, 1958 and the UN Convention on the Law of the Sea, 1982 there are following seven maritime areas over which the States can exercise their jurisdiction:

1) Base Line;

2) Inland waters;

3) Territorial Sea;

4) Contiguous Zone;

5) Exclusive Economic Zone (EEZ);

6) High Seas; and

7) Continental shelf.

 

► The Base Line

 

The coastal curve, from which the maritime area of a State is measured, is called baseline or low water line. Baseline can be of two types: a) normal baseline and b) straight baseline. Normal baseline is the low-water mark line along the coast. The low-water mark after ebb tide on the coast is considered the normal baseline. It is a line hugging the coast. Article 5 contains provisions as to normal baseline and reveals that, except where otherwise provided in this Convention, 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. On the other hand, straight baseline departs from the physical coastline due to certain distinctive features of coasts of a State.

Article 12 (1) and (2) of the 1958 Convention contains provisions as to the delimitation of the baseline and states that, 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 territorial sea 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 each of the two States is measured. The provisions of this paragraph shall not apply where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision. The line of delimitation between the territorial seas of two States lying opposite to each other or adjacent to each other shall be marked on large-scale charts officially recognized by the coastal States. The globally recognized principle as to the delimitation of straight baseline is accepted in 1951 from the judgment of the famous(England vs. Norway; ICJ).


► The Inland Waters

 

The internal waters which exist from the baseline to the landward side area of the coastal State are called the inland waters. Article 8 (1) of the 1982 Convention states that, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. Also article 5 (1) of the 1958 Convention provides that, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

 

► The Territorial Sea

 

The doctrine of territorial sea has traditionally been regarded as founded upon the principle laid down by the Dutch Jurist Bynkershoek in his de dominion maris dissertation in 1702 that a state’s sovereignty extended as far out to sea as a common shot would reach and the three-mile limit has traditionally been represented as simply rough equivalent of the maximum range of a canon shot in the 18th century. Actually the territorial sea is the closest maritime area adjacent to the land territory of states. The territorial sea forms an undeniable part of the land territory to which it is bound, so that a cession of land will automatically include any band of territorial waters.

 

 ► The Contiguous Zone

 

The concept of contiguous zone was virtually formulated as an authoritative and consistent doctrine in the 1930s by the French writer and it appeared in the 1958 Convention on the Territorial Sea. Contiguous zone is that part of the sea which is beyond and adjacent to the territorial sea of the coastal state. It may not extend beyond 24 miles from which the width of the territorial sea is measure. The use of contiguous zones gives the coastal state an additional area of jurisdiction for limited purposes. Article 33 of the 1982 Convention deals with contiguous zone and reveals in its sub-article (1) that, in a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured (Article 33 (2)). Again, article 24 (1) of the 1958 Convention also states that, in a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; b) Punish infringement of the above regulations committed within its territory or territorial sea.

 

► Exclusive Economic Zone (EEZ)

 

Before discussing about the Exclusive Economic Zone (EEZ) or Patrimonial Sea, it is very much pertinent to mention an important case on this topic which will properly clarify the matter. Here the case is the Case (USA and Germany vs. Iceland; ICJ, 1974). In this case, in 1958 following the Geneva Conference, Iceland declared a 12 nautical miles exclusive fisheries zone and the UK accepted it in 1961. On 1st September, 1972 Iceland announced 50 miles of its water territory for the conservation of economic zone measured from straight baseline close to all fisheries vessels. On 14th April, 1972 the UK unilaterally inaugurated proceeding before the ICJ claiming that Iceland was not entitled to the unilateral extension of the zone. The UK further said that the conservation of fish stock of Iceland should be subject to bilateral arrangements between the two States. At that time, the court received another issue concerning the similar German-Iceland dispute. The Court joined them together.

 

► The High Seas

 

The main stream of Grotian theory was that the high sea is res communis as it is physically impossible to take possession of it. Scelle has argued that the character of high sea can be compared to public parks or beaches or any open public place available to the public for general use under the domestic law opines that high sea or open sea is the sea outside the territorial waters. The high seas were defined in article 1 of the 1958 Geneva Convention on the High Seas as all parts of the sea that were not included in the territorial sea or in the internal waters of a state. In the view of recent developments, this definition has become very absolute and inadequate. This provision mainly replicates the customary international law, though in consequence of the developments the definition in article 86 of the 1982 Convention includes: “...all parts of the sea that are not included in the EEZ, in the territorial sea or internal waters of a State, or in the archipelagic waters of an archipelagic State...”. Article 87 of the 1982 Convention provides that high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid down in the Convention and by other rules of international law.

 

► Continental Shelf: Explanation of the Idea

 

The term “continental shelf” is usually meant that part of the continental border which is between the shelf break and shoreline or, where there is no clear slope between the shoreline and the point where the depth of the superjacent water is around between 100 to 200 meters. Continental shelf is a geological expression referring to the ledges that project from the continental land mass into the seas and which are covered with only a relatively shallow layer of water and which eventually fall away into the ocean depths. It is an underwater landmass that extends from a continent, resulting in an area of relatively shallow water known as a shelf sea and a region adjoining the coastline of a continent, where the ocean is no more than a few hundred feet deep.

The legal concept of continental shelf came into attention since Truman Proclamation of 1945 wherein it was declared that the USA considered the resources of the shelf contiguous to the USA as appurtenant to the US and subject to its jurisdiction and control. Article 76 (1) of the 1982 UN Convention defines “continental shelf” as follows:

“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”.

Where the continental margin extends beyond 200 miles, the Convention provides that the continental shelf should not extend more than 350 nautical miles from the baselines or 100 nautical miles from the 2500 meter depth. Again, the Convention on the Continental Shelf (1958) defined the “continental shelf” in the following terms:

“The continental shelf is (a) the seabed and sub-soil of the submarine areas adjacent to the coast but outside the territorial sea to a depth of 200 meters or ‘beyond that limit to where the depth of the superjacent waters admits of the exploration of the natural resources of the said areas’; (b) to the seabed and sub-soil of similar submarine areas adjacent to the coast of island”.

 

► Concluding Remarks

 

It is apparent from the above scrutiny that the law of the sea is a burgeoning area of international law. The 1958 and 1982 Conventions on the Law of the Sea did much to create systematic and humdrum rules for the management and use of this common resource and many of the rules contained in these Conventions have now passed into customary international law. The great achievement was the conclusion of the 1982 UN Convention on the Law of the Sea which deals with about all the vital issues of the law of the sea and it does so in a manner that has commanded a significant amount of support.

 

 

 

 

 

 

 

 

 

 

 

 


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