Evolution of the Law of the Sea

The Law of the Sea is a body of international law that governs the rights and duties of states in relation to the world's oceans. It establishes a legal framework for maritime activities, aiming to balance the interests of coastal states with those of the global community. The evolution of this law reflects the changing dynamics of history, from commerce and naval power to resource exploitation and environmental protection.

Early Principles: Freedom vs. Sovereignty

For centuries, the law of the sea was primarily shaped by customary practices of nations. The foundational debate emerged in the 17th century, centered on two conflicting principles.

1. Mare Liberum (The Free Sea)

In 1609, the Dutch jurist and philosopher Hugo Grotius published his treatise Mare Liberum. Arguing on behalf of the Dutch trading empire, he championed the principle of the freedom of the seas. Grotius contended that the oceans were vast and inexhaustible, common to all nations, and could not be subjected to the sovereignty of any single state. He argued that the high seas should be open for free navigation and trade for everyone.

2. Mare Clausum (The Closed Sea)

In response to Grotius, the English scholar John Selden published Mare Clausum in 1635. He defended the position that states could indeed appropriate and exercise sovereignty over large areas of the sea, just as they did over land. This principle was favored by naval powers like England that sought to control access to their coastal waters and trade routes.

The "Cannon Shot Rule" Compromise

Out of this debate, a practical compromise emerged in the 18th century, articulated by another Dutch jurist, Cornelius van Bynkershoek. He proposed the "Cannon Shot Rule," which held that a coastal state's sovereignty over the sea extended as far as a cannon could fire from the shore. This was a pragmatic test of effective control. At the time, this distance was approximately three nautical miles, which became the widely accepted breadth of the territorial sea for nearly two centuries. This rule successfully balanced the security interests of coastal states with the freedom of navigation on the high seas beyond this narrow belt.

20th Century Developments and the Need for Codification

The customary law of the sea came under immense pressure in the 20th century due to several factors:

• Technological Advancement: Sophisticated fishing fleets could deplete fish stocks far from their home shores. Advances in geology and engineering made it possible to explore and exploit offshore oil and gas reserves.
• Increased Maritime Claims: States began to realize the immense economic potential of the oceans beyond the traditional 3-mile limit.

A pivotal moment was the Truman Proclamations of 1945. The United States President Harry S. Truman issued two proclamations:

1. One claiming exclusive jurisdiction and control over the natural resources of its continental shelf.
2. Another asserting the right to establish fishery conservation zones in areas of the high seas contiguous to its coasts.

These unilateral declarations triggered a chain reaction, with many other coastal states making their own, often extensive, claims over maritime space and resources. This led to a period of uncertainty and conflict, often referred to as "creeping jurisdiction," which threatened the very freedom of the seas. It became evident that a comprehensive international treaty was needed to prevent chaos and establish a stable legal order.

This led the United Nations to convene a series of conferences on the Law of the Sea, starting with UNCLOS I in 1958, which produced four separate conventions. However, these conventions failed to resolve key issues, most notably the maximum breadth of the territorial sea, setting the stage for the landmark negotiations that would culminate in the 1982 convention.

United Nations Convention on the Law of the Sea (UNCLOS), 1982

The United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, is the definitive international agreement on the law of the sea. It is a comprehensive treaty that establishes a legal framework for all activities in the oceans and seas. After nearly a decade of negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III), it was opened for signature in Montego Bay, Jamaica, and entered into force in 1994.

Nature of UNCLOS

UNCLOS is often referred to as a "Constitution for the Oceans" due to its comprehensive and foundational nature. Key aspects of its character include:

• Comprehensive Framework: Unlike previous attempts, which resulted in separate treaties, UNCLOS covers almost every aspect of ocean space and usage, including maritime zones, navigation rights, resource management, environmental protection, marine scientific research, and dispute settlement.

• "Package Deal": The convention was negotiated as a single, indivisible "package deal." This means that states could not pick and choose which provisions to accept. To become a party, a state had to accept the entire treaty, a mechanism designed to maintain the delicate balance of interests negotiated between coastal states, maritime powers, and land-locked nations.

• Customary International Law: With over 168 parties (including the European Union), UNCLOS enjoys near-universal participation. Many of its key provisions, particularly those relating to maritime zones like the Territorial Sea and the Exclusive Economic Zone (EEZ), are now considered to reflect customary international law, making them binding even on states that have not ratified the convention, such as the United States.

• India's Position: India played an active and constructive role throughout the UNCLOS negotiations. It signed the convention in 1982 and ratified it in June 1995. Even before the convention was finalized, India enacted its Maritime Zones Act of 1976, which established its territorial sea, contiguous zone, exclusive economic zone, and continental shelf, largely in alignment with the emerging consensus at the conference.

Key provisions and importance

The primary importance of UNCLOS is that it provides stability, predictability, and a peaceful means for resolving disputes over the oceans. It achieves this by meticulously defining the various maritime zones and the rights and duties of states within them.

The Convention divides the sea into distinct zones, each with a different legal status:

Key Concepts Defined by UNCLOS

• Territorial Sea: A belt of coastal waters extending up to 12 nautical miles from the baseline. The coastal state exercises full sovereignty here, but it must allow the "innocent passage" of foreign ships. Passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal state.

• Exclusive Economic Zone (EEZ): A crucial innovation of UNCLOS, the EEZ extends up to 200 nm from the baseline. In this zone, the coastal state does not have full sovereignty, but it has sovereign rights for the purpose of exploring, exploiting, conserving, and managing all natural resources. All states continue to enjoy the freedoms of navigation and overflight in the EEZ.

• Continental Shelf: The natural prolongation of a state's land territory under the sea. UNCLOS gives the coastal state sovereign rights over the resources of the seabed and subsoil of its continental shelf (e.g., oil, gas, minerals).

• High Seas: The waters beyond the EEZ are the high seas, which are open to all states. The principle of mare liberum prevails here, guaranteeing freedoms of navigation, fishing, scientific research, etc., for all.

• The Area: In a revolutionary move, UNCLOS declared the seabed and ocean floor beyond the limits of national jurisdiction (i.e., beyond the continental shelf) and its resources to be the "common heritage of mankind." An organization, the International Seabed Authority (ISA), was established to manage and control resource-related activities in the Area, with the aim of sharing the financial and economic benefits with the global community, particularly developing nations.

• Dispute Settlement: UNCLOS established a compulsory and comprehensive dispute settlement system. This includes the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany, as well as procedures for arbitration and conciliation, ensuring that disagreements over the interpretation or application of the convention can be resolved peacefully.

Internal Waters

Internal Waters are all the waters that lie on the landward side of the baseline from which the breadth of the territorial sea is measured. These waters are assimilated into the land territory of the coastal state and are subject to its full and exclusive sovereignty.

Internal waters include:

• Ports and Harbours: These are considered an integral part of the coastal state's territory.

• Rivers and Estuaries: Waters of rivers that flow directly into the sea.

• Bays: Waters of certain bays that meet specific geographical criteria (e.g., the closing line across the mouth of the bay is not more than 24 nautical miles).

• Waters landward of straight baselines: In areas where the coastline is deeply indented or fringed with islands, a state may draw straight baselines, and the waters behind them are considered internal waters.

The most critical legal feature of internal waters is that, unlike the territorial sea, there is no right of innocent passage for foreign vessels. Foreign ships require permission from the coastal state to enter its internal waters, except in cases of distress. The coastal state has the absolute right to regulate access and apply its domestic laws within these waters.

Territorial Sea

The Territorial Sea is a belt of sea adjacent to the coast of a state, extending from its baseline. It represents an extension of the coastal state's sovereignty into the ocean.

Breadth (12 nautical miles)

Under Article 3 of UNCLOS, every state has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles (nm), measured from the baselines. This provision successfully resolved one of the most contentious issues in the historical law of the sea, replacing the ambiguous "cannon shot rule" with a universally accepted limit. India's Maritime Zones Act of 1976 also provides for a 12 nm territorial sea.

Sovereignty of coastal state

According to Article 2 of UNCLOS, the sovereignty of a coastal state extends beyond its land territory and internal waters to its territorial sea. This sovereignty is not limited to the water column; it also applies to:

• The airspace above the territorial sea.
• The seabed of the territorial sea.
• The subsoil thereof.

This means the coastal state has the exclusive right to regulate all activities within this zone, such as fishing, resource exploitation, and construction. However, this sovereignty is subject to one crucial limitation: the right of innocent passage for foreign ships.

Innocent passage

The right of innocent passage is a fundamental principle of the law of the sea that balances the sovereignty of the coastal state with the freedom of navigation for the international community. It is defined in Articles 17-19 of UNCLOS.

Meaning of Passage

Passage means navigation through the territorial sea for the purpose of:

1. Traversing that sea without entering internal waters or calling at a port facility outside internal waters.
2. Proceeding to or from internal waters or a call at such a port facility.

Passage must be continuous and expeditious. However, it includes stopping and anchoring, but only insofar as these are incidental to ordinary navigation or are rendered necessary by force majeure (an irresistible force) or distress.

Meaning of "Innocent"

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Article 19(2) provides a list of activities that are considered non-innocent. If a foreign ship engages in any of these while in the territorial sea, its passage is no longer innocent. These activities include:

• Any threat or use of force against the sovereignty, territorial integrity, or political independence of the coastal state.
• Any exercise or practice with weapons of any kind.
• Any act of collecting information to the prejudice of the defence or security of the coastal state (spying).
• Any act of propaganda aimed at affecting the defence or security of the coastal state.
• The launching, landing, or taking on board of any aircraft or military device.
• Fishing activities.
• The carrying out of research or survey activities.
• Any act of wilful and serious pollution.

Submarines and other underwater vehicles are required to navigate on the surface and to show their flag during passage.

Contiguous Zone

The Contiguous Zone is a belt of water adjacent to the territorial sea where the coastal state can exercise limited control for specific purposes. It acts as a buffer or enforcement zone.

Breadth (24 nautical miles)

As per Article 33 of UNCLOS, the contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Since the territorial sea can extend to 12 nm, the contiguous zone itself is a band of up to 12 nm beyond the territorial sea.

Customs, fiscal, immigration or sanitary laws

Unlike the territorial sea, the coastal state does not have sovereignty in the contiguous zone. Instead, it has specific enforcement jurisdiction. In this zone, the coastal state may exercise the control necessary to:

1. Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
2. Punish infringement of the above laws and regulations committed within its territory or territorial sea.

For example, if a customs official has reason to believe a ship is about to smuggle goods into the country, they can stop and inspect the ship within the contiguous zone to prevent the crime. If a ship has already committed a violation (e.g., illegal dumping of waste) in the territorial sea and is fleeing, officials can pursue and arrest it in the contiguous zone to punish the infringement.

Exclusive Economic Zone (EEZ)

The Exclusive Economic Zone (EEZ) is a maritime zone established by UNCLOS that grants special rights to the coastal state regarding the exploration and use of marine resources. It is one of the most significant contributions of the convention.

Breadth (200 nautical miles)

The EEZ is an area beyond and adjacent to the territorial sea. Article 57 of UNCLOS states that it shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

Sovereign rights for exploration, exploitation, conservation and management of resources

The legal regime of the EEZ is unique. The coastal state does not have full sovereignty but rather a bundle of sovereign rights and jurisdiction. These are primarily economic in nature.

According to Article 56 of UNCLOS, in the EEZ, the coastal state has:

1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living (e.g., fish stocks) or non-living (e.g., oil, natural gas, minerals), of the waters superjacent to the seabed and of the seabed and its subsoil. This also includes sovereign rights with regard to other activities for the economic exploitation of the zone, such as the production of energy from the water, currents, and winds.

2. Jurisdiction with regard to:

   • The establishment and use of artificial islands, installations, and structures.
   • Marine scientific research.
   • The protection and preservation of the marine environment.

Importantly, other states retain their high seas freedoms of navigation and overflight and the freedom to lay submarine cables and pipelines in the EEZ, provided they are exercised with due regard for the rights of the coastal state.

Continental Shelf

The Continental Shelf is a critical maritime zone that grants coastal states exclusive rights to the resources of the seabed and subsoil, extending far beyond the territorial sea.

Natural prolongation of land territory

The legal definition in Article 76 of UNCLOS is based on the geological concept of the continental shelf as the natural prolongation of a state's land territory under the sea.

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.

UNCLOS grants every coastal state a continental shelf of at least 200 nautical miles from its baselines, regardless of the actual geological formation. This ensures that even states with a narrow geological shelf get the same minimum extent as their EEZ seabed.

If a state's continental margin extends beyond 200 nm, it can claim an extended continental shelf up to a maximum of 350 nm from the baseline or 100 nm from the 2,500-metre isobath (a line connecting points of 2,500m depth). Such claims must be substantiated with scientific and technical data submitted to the Commission on the Limits of the Continental Shelf (CLCS).

The coastal state exercises exclusive sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. These resources consist of:

• Mineral and other non-living resources of the seabed and subsoil.
• Living organisms belonging to "sedentary species," i.e., organisms which, at the harvestable stage, are either immobile on or under the seabed or are unable to move except in constant physical contact with the seabed (e.g., oysters, clams, crabs).

These rights are exclusive in the sense that if the coastal state does not explore or exploit its shelf, no one else may do so without its express consent.

High Seas

The High Seas are defined as all parts of the sea that are not included in the EEZ, the territorial sea, or the internal waters of a state. They are open to all states, and no state may validly purport to subject any part of them to its sovereignty.

Freedom of navigation, overflight, fishing, research

The legal regime of the high seas is governed by the principle of the freedom of the seas. Article 87 of UNCLOS lists the primary freedoms available to all states, both coastal and land-locked:

• Freedom of navigation.
• Freedom of overflight.
• Freedom to lay submarine cables and pipelines.
• Freedom to construct artificial islands and other installations permitted under international law.
• Freedom of fishing (subject to certain conservation duties).
• Freedom of scientific research.

These freedoms must be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas.

Jurisdiction on the high seas

The general rule of jurisdiction on the high seas is that of exclusive flag State jurisdiction. This means that a ship on the high seas is subject only to the laws and jurisdiction of the state whose flag it is entitled to fly.

However, international law provides for several exceptions to this rule, where a warship or other authorized government vessel may interfere with a foreign-flagged ship on the high seas. These exceptions include:

• Hot Pursuit: The right to pursue a foreign ship that has violated the coastal state's laws in its internal waters, territorial sea, or contiguous zone. The pursuit must be continuous and must cease as soon as the ship enters the territorial sea of its own state or of a third state.
• Piracy: Piracy is a crime of universal jurisdiction. Any state can seize a pirate ship on the high seas and arrest the persons and seize the property on board.
• Slave Trade: Any state has the right to board a ship suspected of being engaged in the slave trade.
• Unauthorized Broadcasting: Any state where the transmission can be received can intervene against unauthorized broadcasting from the high seas.
• Ships without Nationality: A warship may board a ship that is not flying a flag and is suspected of being without nationality.

The Area (Common Heritage of Mankind)

"The Area" is defined by UNCLOS as the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction (i.e., beyond the outer edge of the continental shelf). It is one of the most visionary concepts in international law.

UNCLOS declares the Area and its resources to be the "common heritage of mankind." This principle has several key implications:

• No state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources.
• All rights in the resources of the Area are vested in mankind as a whole.
• Activities in the Area shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.

Seabed mining

The practical application of the "common heritage" principle is in the regime for mining the mineral resources of the deep seabed, such as polymetallic nodules, cobalt-rich crusts, and polymetallic sulphides.

To manage this, UNCLOS established the International Seabed Authority (ISA), headquartered in Kingston, Jamaica. The ISA acts on behalf of mankind to:

• Organize, carry out, and control all activities of exploration and exploitation in the Area.
• Issue licenses and contracts to states and private entities for seabed mining.
• Ensure the effective protection of the marine environment from harmful effects which may arise from such activities.
• Promote and encourage marine scientific research in the Area.
• Ensure the equitable sharing of financial and other economic benefits derived from activities in the Area, with special consideration for the interests and needs of developing States.

This regime represents a global effort to manage a shared resource for the benefit of all, rather than allowing it to be exploited only by those with the technology to do so.