The Law of Seas: Past, Present, and Future in a Nutshell
Authored By- Riya Jariwala
Keywords- Law of Seas, Maritime Law, UNCLOS, Territorial waters, Exclusive Economic Zone, Fishing Rights, Piracy, International Law.
Life itself arose from the sea. Even as countries have mapped their territorial boundaries, states have demarcated their water borders without making them an absolute symbol of sovereignty. This article traces the historical development of the Law of Seas and analyses the Grotian principle of ‘Mare Liberum’ or ‘Freedom of Seas’ in a modern context. This article also gives an overview of the statutory regime governing the Law of Seas in India while suggesting some necessary changes for the future.
The ‘Law of Seas’ is a prominent branch of International Law governing the rights and obligations of states in maritime environments. ‘Maritime Law’ or the ‘Law of Seas’, though etymologically identical, connote different meanings as the former refers to private shipping law whereas the latter deals with the maritime segment of Public International Law and signifies broad universal principles to follow by nation-states.
Historical Evolution of the Law of Seas.
For several centuries, since the medieval age, empires have established their sovereignty not only on land but also claimed authority over the surrounding waters and its resources. For instance, the claim of Genoa in the Mediterranean and of Great Britain in the North Seas and elsewhere. This led to the doctrine of ‘Freedom of Seas’ or “Mare Liberum” as proposed by Jurist Hugo Grotius. The Doctrine of Freedom of seas implied that the high seas were open to all nations and shall not be subjected to national sovereignty in times of peace.
The Freedom of High Seas is extended to include freedom of navigation, fishing, laying of submarine cables and pipelines, and overflight of aircraft. Freedom of High Seas in the 19th Century was later substituted by the demands made by coastal states for exclusive off-shore fishing rights for the conservation of maritime resources and for the exploitation of natural resources, especially oil in the 20th Century. Therefore, the facilitation of transnational trade, management of rich marine resources, and countering piracy have dictated the need for a universal law of seas for all members of the global community.
The first attempt to codify the law of seas was made in the United Nations Conference on Law of Seas, at Geneva in 1958. However, this endeavor failed to resolve many issues, most importantly, the issue of determination of the maximum possible breadth of territorial sea subject to national sovereignty.
After several unsuccessful attempts, the Law of Seas was codified in the United Nations Convention on Law of Seas (UNCLOS), signed on December 10th, 1982(hereinafter referred as ‘The 1982 Convention’). This convention also popularly known as the ‘Constitution of Law of Seas’ came into effect in 1994 and is presently ratified by over 150 countries around the world.
The 1982 convention comprises detailed regulations on issues like an innocent passage through territorial waters, the definition of the continental shelf, and gives a broad framework for issues such as pollution prevention, fisheries conservation, and management, shipping safety. The regulations regarding safety of shipping, anti-pollution measures, fisheries conservation are further supplemented by regional treaties executed by the International Maritime Organisation (IMO), United Nations Environment Programme, and UN Food and Agriculture Organisation.
Indian legal regime for maritime laws:
According to the 1982 Convention, each country’s sovereign territorial waters extend to a maximum of 12 nautical miles beyond its coast. Beyond its territorial waters, every coastal country may establish an Exclusive Economic Zone(EEZ)extending 200 nautical miles from the shore. In India, The Territorial Waters, Continental Shelf, Exclusive Economic ZoneAnd Other Maritime Zones Act, 1976 defines the territorial waters, continental shelf, contiguous zone, and Exclusive Economic Zone in consonance with the 1982 Convention.At present, the territorial waters of India extend up to 12 nautical miles from the baseline on the coast of India and include any gulf, harbour, creek or tidal river. India’s continental shelf and exclusive economic zone extend to 200 nautical miles from the baseline.
Furthermore, the Act also contains rules regarding the use of territorial waters by foreign ships and provides for the mode of determination of maritime boundaries between India and other states, place of trial, and pre-requisites for trial in case of disputes of this kind.
The Indian Penal Code is applicable to any person committing an offence outside the territorial limits of India on a ship registered in India. India’s position in relation to its maritime laws is governed by Article 297 of the Constitution which states that all lands, minerals and other things of value underlying the ocean within the territorial waters, or continental shelf or exclusive economic zone shall vest in the Union of India. Besides, all other resources of the exclusive economic zone also vest in the Union.
The above legislations are also supplemented by The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 and the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Rules, 1982 which are enacted to curb poaching activities by foreign fishing vessels in the Indian EEZ. Under the MZI Act, the EEZ is protected from exploitation of living resources by Indians and/or foreign nationals aboard a foreign vessel, which does not hold a valid license/permit. Furthermore, offences relating to smuggling are covered under The Sea Customs Act, 1878.
Maritime laws in India are still at a nascent stage of development. Offences such as unauthorized research, acts aimed at collecting information to the prejudice of the security of India, unauthorized operation of a vessel in the offshore development area are not yet covered under any statute in India. A strong regulatory regime having comprehensive legislation and implementation is required to control any nefarious activities in the deep seas. The fact that India is surrounded by water bodies on three sides is both a boon and a bane since such geographical situation makes India more vulnerable to threats of internal security, piracy, unauthorised navigation.
Section 4, The Indian Penal Code,1870.