Law of Sea.

sakshi mittal 0

 

 

·         The Law of the Sea is associated with the Convention on the Law of Sea, a UN-based international treaty. It was signed in 1982 by 117 states and was adopted in 1994.

·         Hugo Grotius, the father of international law, played a significant role in formulating maritime law concepts.

·         During the 17th century, the doctrine was called “freedom of the seas.” According to this law, the sea is accessible to all the states, but the sea/ocean does not belong to any conditions. The law of the sea is constantly changing. 

·         Earlier, there was a conflict between “the free sea” and “the open sea.” Due to technological advancement, during the 20th century, many states made jurisdictional claims to use, conserve and protect the sea.

 

UNCLOS stands for the United Nations Convention for the Law of the Sea. It is also known as the Law of the Sea. It is an international agreement or treaty that establishes rules and guidelines for using the world’s oceans and seas, conserving marine resources, and securing the preservation and protection of all the living beings of the sea. The treaty was signed on 10 December 1982 in Montego Bay, Jamaica, due to the United Nations Conference on the Law of the Sea, which took place from 1973 to 1982 and came into force in 1994. In 1982, the United Nations adopted the law, consisting of 320 articles, 168 parties, nine annexes, and four resolutions - It extended the territorial sea to 12 nautical miles, it explained the formation of the International Tribunal for the Law of the Sea to carry out its disputes



The zones are:- 

Baseline - Lowest waterline, mostly 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 Anglo-Norwegian Fisheries Jurisdiction Case (1951) (England vs. Norway; ICJ).

Internal waters - landward side of the baseline. Here, one can measure the territorial sea’s breadth; every coastal area has complete authority over the internal waters, just like the land territories. For example, ports, bays, rivers, inlets, and lakes are interconnected with any sea. A coastal state has all the rights to prevent the Privately Contracted Armed Security Personnel entry to the port if they carry any weapons forbidden in the national legislation.

Contiguous zones:- Extend nearly 24 nautical miles from the baseline of the sea, the intermediate zone. The coastal states have all the rights to prevent and punish immigration, infringement, and sanitary and custom laws bordering the region and the territorial sea. It gives sovereignty to a region only on the sea surface & floor. This zone does not have air rights or space rights.   Article 33 of the 1982 Convention states that a Contiguous zone must not be more than 24 nautical miles from the baseline where the territorial sea area is measured. Thus, the contiguous area is 12 miles from the territorial sea. India has claimed the contiguous zone to the extent of 24 nautical miles by enacting the Maritime Zones Act of 1976.

Territorial sea:- Extends to the seaward about twelve nautical miles from the baselines. The coastal regions have jurisdiction and authority on territorial seas. This sovereignty is not just through the sea’s surface but to any subsoil, seabed, and airspace. The rights of the coastal states are restricted to any form of innocent passage from the territorial region of the sea.

Exclusive economic extends 200 nautical miles(370.4 km) to the sea from the baseline; any coastal region has the right to explore, conserve and manage natural resources in the seabed and subsoil, whether the resources are living or nonliving. They have exclusive rights to bear every activity, like energy production from the sea, water currents, and winds. EEZ exclusively allows the rights mentioned above. This zone does not allow the coastal state to prohibit navigation (only under various exceptional cases). Section 7of the Maritime Act of 1976 provides exclusive rights to explore and exploit the natural resources within EEZ.

Continental shelf:- According to W. Friedman, the continental shelf can be defined as the zone around the continent that extends from a low water line to depth and is usually marked towards greater depth. It usually extends to a depth of about 200 meters.

High Seas 

The ocean’s surface and water column do not come under the exclusive economic zone, territorial sea, or internal water. It is called the “Common Heritage Of All Mankind” and is beyond the nation’s jurisdiction. Coastal countries can conduct activities on the High Seas only if they are peaceful, like undersea exploration or marine studies. Article 87(2) of the convention lays down the limitation of the general nature on the freedom of high seas by stating that the freedom of the high seas “shall be exercised with due regard to the interests of other States in their exercise of the freedom of high seas”.




India’s position about the Law of the sea is generally governed by Article 297 of the Indian constitution.

 

South China Sea Dispute Overview

  1. Historical Context:
    • Ming Dynasty: Approximately 5,000 years ago, China was governed by the Ming dynasty, known for the Terracotta Warriors.
    • Ancient Claims: A naval map from the Ming period depicted the South China Sea region, including parts of the coast of Vietnam, Indonesia, and the Philippines, as Chinese territory.
  2. Modern Claims:
    • Nine-Dash Line: In contemporary times, China claims large areas of the South China Sea, within the territorial waters of several Southeast Asian nations, under the "nine-dash line" policy.
  3. Territorial Intrusions:
    • 1988 Incidents: The Chinese navy, supported by the air force, began intruding into Philippine waters and constructing artificial islands in the Spratly and Johnson island groups.
    • Philippine Protests: The Philippine government protested these actions, citing violations of their maritime sovereignty. China ignored these protests and continued building military installations on the islands.
  4. International Arbitration:
    • PCA Ruling (2015): The Philippines brought the dispute to the Permanent Court of Arbitration (PCA), which ruled that China's nine-dash line claim was invalid and its construction activities were illegal, violating the United Nations Convention on the Law of the Sea (UNCLOS) and the UN Charter.
  5. Post-Judgment Actions:
    • China's Response: China rejected the PCA's ruling and continued its construction activities, building large seaports and military bases on the disputed islands.
    • Further Expansion: Since 2016, China has expanded its island-building activities to waters claimed by Vietnam, Indonesia, and Malaysia, maintaining its stance on the nine-dash line.


Flag State Rule Overview

  1. Definition: Vessels, ships, aircraft, and submarines must be registered in a specific country and fly that country's flag.
  2. Applicability: This rule applies to military and commercial ships, oil tankers, and cruise ships.
  3. Leading Registrations: Liberia and Panama have the most ship registrations, though many of these ships are eventually scrapped in Alang, Gujarat.
  4. Legal Basis: The Flag State rule is outlined in Part VII, Article 92 of UNCLOS, and also applies to environmental disputes under Article 217(1) of UNCLOS, 1982.

 

S.S Lotus case (France Vs. Turkey, 1927) :-

  • Collision: French vessel S.S. Lotus and Turkish ship S.S. Bozkurt collided, killing 8 Turkish nationals.
  • Aftermath: Survivors were taken to Turkey on S.S. Lotus.


Legal Action:

  • Charges: Turkish authorities charged the French ship's captain and first officer, Monsieur Demons, with manslaughter, sentencing him to imprisonment and a fine.
  • French Response: France demanded Demons' release and transfer of the case to a French court. The dispute was referred to the Permanent Court of International Justice (PCIJ).


P.C.I.J. Judgment:

  • Ruling: P.C.I.J. held that Turkey had not violated international law by prosecuting Monsieur Demons, upholding Turkey's right to prosecute.


Aftermath:

  • Criticism: The judgment faced significant criticism.
  • Legal Reforms: The United Nations later introduced changes to the Flag State rule.

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