September 30, 2022
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    Current Global Legal Regime on Sea

    August 21, 2019

    The third United Nations Conference on the Law of the Sea, which began in 1973, was only concluded with the signing of the Convention in 1982. This conference was convened for the purpose of establishing an equitable regime for the ocean area and it was hoped that the Convention to be produced would finally resolve many matters which had been unresolved. The final test consisting of 320 Articles and 9 annexes together with the final Act deals with all facets of the law of the sea. It is both a codification and progressive development of existing international law as well as a formulation of new rules of law. Sri Lanka among many other countries voted in favour of the treaty and has signed the treaty and is presently a party to the treaty. The Convention came into force in 1994 after obtaining the 60th ratification. Today over 166 States including European Union are parties to the Convention.

    The 1982 Convention as a whole can be taken as representing the present international law of the sea. It seems to be a fair inference to draw that the principles embodied in the treaty can be regarded as having the general acceptability of the international community and would be binding even on non parties as customary international law.

    The Convention has been constituted out of the two main sources of international law namely custom and treaty. But the other sources too have contributed their share. ‘The Convention has also incorporated the judgments of the International Court of Justice as for example the theory of natural prolongation propounded in the North Sea Continental Shelf Cases which has been adopted as one of the criteria for delimitation of the Continental Shelf, or the concept of the coastal States preferential rights in the adjoining seas as elucidated in the Fisheries Jurisdiction Case which concept has now been tended to comprehend the exclusive economic zone. The general principles of law recognized by civilized nations have also been worked into the text of the Convention as seen in the notion of equity which is the underlying thread which runs through most of the provisions of the Convention and which is a criterion in delimitation of boundaries between adjacent and opposite States.

    The Law of the Sea has not been static. It has been dynamic and evolutive in character, changing in response to new dimensions in science and technology, and in which economic and political considerations have had a part to play. In the new Law, principles such as those of equity, equality and environmental considerations, begin to weave their way into the fabric of the Law. We see the greater emphasis on pollution control and protection of the environment stressing the theme of universality, and for the first time the notion of the human species as a subject of rights and duties, which underlies the provisions relating to the brave new concept of the common heritage of mankind, which finds expression in the ‘International Seabed Area’, together with the provisions for an ‘International Seabed Authority’. All these new trends are the outcome of the Third United Nations Conference on the Law of the Sea concluded in 1982.

    Old Law and New Law

    The new law must also be differentiated from the older or traditional law, which was mainly customary international law which had evolved from the practices of the Western European maritime nations. ‘This law as it began to evolve from about the 17th century stressed the principle of freedom of the high seas. This theory was at that time a departure from the closed sea doctrine which had prevailed in Europe during the earlier centuries.

    While the old law stressed the freedom of all nations to use and exploit the high seas, the new law stresses the right of the coastal State to the exclusive use of larger and larger areas of the seas and seabed adjoining their coasts. It was however, recognized that the unchecked expansion of national jurisdiction over the high seas and seabed would also be inequitable as it would give undue advantage to those States which have been geographically favoured with wide coastlines. Hence a distance criteria of 200 miles in the case of the Exclusive Economic Zone and 350 miles in the case of Continental Shelf, has been worked out in the provisions of the 1982 Convention which curtail the effect of unimpeded expansion. Furthermore in respect of the exclusive economic zone provisions have been made for the allocation of surplus resources, keeping in mind the needs of the developing States as well as landlocked and geographically disadvantaged States.

    Similarly in the case of Continental Shelf, while the 1982 Convention gives all coastal States 200 miles on the basis of a distance criterion irrespective of the question of natural prolongation of its land territory under the sea, nevertheless it makes provision that in respect of the exploitation of the non- living resources of the Continental Shelf beyond 200 miles, payments and contributions have to be made to the Seabed Authority, which shall distribute them to the State parties to the Convention on the basis of equitable sharing criteria, taking into account the interests and needs of developing States particularly the least developed and the landlocked among them. Thus while recognizing the principle of the preferential right of the coastal State, provision has also been made to give part of these resources to other States of the region as well.

    Principle of Common Heritage of Mankind

    Another new concept which has had a limiting effect on the principle of national aggrandizement is that of the common heritage of mankind. This evolutionary new concept views the area of the seabed outside national jurisdiction and under the high seas as constituting the common heritage of mankind, the ownership and exploitation of which are vested in all nations. The new doctrine has in mind a collective ownership, which is centrally managed and the resources of this area are to be distributed on the basis of equity. Part XI of the 1982 Convention has given concrete expression to this idea. The deep seabed is demarcated as ‘The Area’ and it is expressly stated that the Area and its resources are the common heritage of mankind. The Convention sets out very detailed provisions relating to the setting up of an international seabed Authority and mechanisms for exploiting the resources of the deep seabed. The emerging new law has in this instance introduced a universal approach, transcending narrow national and regional interests.

    Baseline defined in the 1982 Convention follows the customary international law as set out in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone. It states that the low water mark of ordinary spring tides along the coast of the mainland and along the seaward edge of islands, shall be the baseline from which the territorial sea may be measured. The 1958 Convention provides for the drawing of straight baselines where the coast line is deeply intented and cut into or where there is a fringe of islands along the coast in its immediate vicinity. The methods of setting out baselines have been adopted in the 1982 Convention. Article 14 of the Convention states that the coastal State may determine baselines by any of the methods provided for to suit different conditions.

    Bay is defined in the 1982 Convention as a well marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters, and constitute a more than a mere curvature of the coast. In the case of bays which have a mouth wider than 24 miles the Convention provides that a straight baseline of 24 miles within the bay may be drawn so that, the waters on the landward side are internal waters while the territorial sea would be measured from the baseline outwards to the sea.

    Territorial Sea

    With regard to the territorial sea, there had been a controversy as to how far and on what basis the territorial sovereignty could be said to extend into the seas. In modern times, the Hague Codification Conference of 1930 was in favour of the principle of sovereignty and this term is used in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, which states ‘the sovereignty of a State extends beyond its land territory and its internal waters to a belt of the sea adjacent to its coast described as the territorial sea. This sovereignty is exercised subject to the provisions of these Articles and to other rules of international law. The 1982 Convention uses almost the same terminology. It was finally agreed in the 1982 Convention that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles. The 12 mile is drawn from the baseline and is the low water mark of ordinary spring tides along the coast. The Convention also made provisions for transit passage in straits used for international navigation.

    Article 15 of the 1982 Convention sets out the criteria for delimitation of the territorial sea between States with opposite or adjacent coasts. This section provides for States to demarcate it by agreement, failing which by a median or lateral line, every point of which is equi - distant from the nearest points on the baseline. In the case of Sri Lanka and India, the territorial sea has been delimited by agreement between the two countries.

    Innocent passage is a right which customary international law recognizes may be viewed as a right or a privilege given to third States to travel within these waters, while at the same time recognizing the jurisdiction of the coastal State. The right of innocent passage has been incorporated into the provisions of the Geneva Convention on the Territorial Seas and Contiguous Zones of 1958 and into the 1982 Convention of the Law of the Sea. The 1982 Convention specifically sets out the laws and regulations which the coastal State may adopt within its territorial sea in relation to innocent passage which in the main deals with safety of navigation and include such matters as conservation of the living resources of the sea and preservation of improvement of the fisheries laws and the prevention of the infringement of the customs, fiscal, immigration or sanitary laws and regulation of the State.

    Civil and Criminal Jurisdiction

    The territorial sea being under the sovereignty of a State, State can legislate for this region and has civil and criminal jurisdiction over foreign ships and shipping where they contravene such laws within this region. The State exercises jurisdiction over foreign vessels only where there has been contravention of its law. It is a rule of customary international law that the law of the ships flag governs. This principle has been incorporated into the 1982 Convention in Article 94, which states that every State shall effectively exercise its jurisdiction and control, in administrative, technical and social matters over ship flying its flag on the high seas. Although the flag State has full jurisdiction when the ship is in the high seas, when the ship enters the territorial waters of another State, it must observe the laws of that State. Hence contravention of these laws gives the coastal State jurisdiction. Piracy on high seas is an international law offence but committed on seas within the national jurisdictions, it may not come within Convention definition. Hence it becomes necessary to criminalize all acts of piracy or intent to commit piracy under the national laws as well.

    As regards the operation of the Convention, it is evident that the international seabed authority has not been able to perform adequately due to lack of advanced technology. The themes of universality and equitable distribution of marine resources is still to be worked out in the face of competing national claims to resources. Conservation and management of marine resources are not consistently followed. Many States fail to comply with their obligations under the Convention as well as other conventions, which enjoin prohibition on illegal unlimited and unauthorized fishing on the High seas, as well as restrictions on fishing of certain categories of marine species such as whales, and use of prohibited methods fishing, all of which lead to destruction of fish stocks and the ecosystems that sustain fisheries.

    However, it must be noted that despite these shortcomings the Conventions has set out a regime for the oceans, and marked the limits of the different sea zones under the jurisdiction of States as well as the legal regime in zones under the jurisdiction of States as well as the legal regime in the different zones. It has set the standards in respect of marine conservation and management, marine research and transfer of marine technology and pollution prevention and control. Not least of all it has set out the dispute mechanism systems in Chapter XV. This section provides for settlement of disputes by peaceful means through agreement or conciliation, or under compulsory procedures entailing binding decisions.

    The Courts designated under the Convention are as follows: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted under Annex vii, and special arbitral tribunal constituted under Annex viii. It is noteworthy that the courts and tribunals have issued judgements and made awards determining a great number of maritime boundary delimitation disputes between States as well as other maritime matters. The dispute settlement mechanism has helped to diffuse tensions between States and to maintain the rule of law in the ocean.

    The Convention can be looked at in a larger perspective too, as setting out at least in relation to the general principles, the new regime of the law of the sea, and hence applicable to Sri Lanka not only as treaty law, but also as part of the general International Law.

    (The writer is a Retired Professor in Law in University of Sri Jayewardenepura. He is an Attorney at- Law with Ph.D in Law as well).

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