The United Nations Convention on the Law of the Sea (UNCLOS) is a comprehensive UN legal policy document demarcating areas of the sea under the jurisdiction of member states as well as legal clauses for human maritime activity in a comprehensive manner.
The UNCLOS aims to demarcate and scrutinize the legal ramifications in the fullest possible scope of different jurisdictional and geographical areas of the sea as well as for human maritime activity. The sections for maritime zones that were defined in the UNCLOS include the exclusive economic zone (EEZ), the territorial sea, the contiguous zone, the continental shelf, archipelagic waters, the international sea-bed areas and the high seas. The sections for maritime activities are numerous and intricate, and some examples include clauses for shipping routes, marine conservation, resource exploitation, and for scientific research.
United Nations Convention on the Law of the Sea (UNCLOS) 1982, also known as Law of the Sea divides marine areas into five main zones namely- Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas.
- UNCLOS is the only international convention which stipulates a framework for state jurisdiction in maritime spaces. It provides a different legal status to different maritime zones.
- It provides the backbone for offshore governance by coastal states and those navigating the oceans. It not only zones coastal states’ offshore areas but also provides specific guidance for states’ rights and responsibilities in the five concentric zones.
- It is the low-water line along the coast as officially recognized by the coastal state.
- Internal Waters:
- Internal waters are waters on the landward side of the baseline from which the breadth of the territorial sea is measured.
- Each coastal state has full sovereignty over its internal waters as like its land territory. Examples of internal waters include bays, ports, inlets, rivers and even lakes that are connected to the sea.
- There is no right of innocent passage through internal waters.
- The innocent passage refers to the passing through the waters which are not prejudicial to peace and security. However, the nations have the right to suspend the same.
- Territorial Sea:
- The territorial sea extends seaward up to 12 nautical miles (nm) from its baselines.
- A nautical mile is based on the circumference of the earth and is equal to one minute of latitude. It is slightly more than a land measured mile (1 nautical mile = 1.1508 land miles or 1.85 km).
- The coastal states have sovereignty and jurisdiction over the territorial sea. These rights extend not only on the surface but also to the seabed, subsoil, and even airspace.
- But the coastal states’ rights are limited by the innocent passage through the territorial sea.
- The territorial sea extends seaward up to 12 nautical miles (nm) from its baselines.
- Contiguous Zone:
- The contiguous zone extends seaward up to 24 nm from its baselines.
- It is an intermediary zone between the territorial sea and the high seas.
- The coastal state has the right to both prevent and punish infringement of fiscal, immigration, sanitary, and customs laws within its territory and territorial sea.
- Unlike the territorial sea, the contiguous zone only gives jurisdiction to a state on the ocean’s surface and floor. It does not provide air and space rights.
- Exclusive Economic Zone (EEZ):
- Each coastal State may claim an EEZ beyond and adjacent to its territorial sea that extends seaward up to 200 nm from its baselines.
- Within its EEZ, a coastal state has:
- Sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, whether living or nonliving, of the seabed and subsoil.
- Rights to carry out activities like the production of energy from the water, currents and wind.
- Unlike the territorial sea and the contiguous zone, the EEZ only allows for the above-mentioned resource rights. It does not give a coastal state the right to prohibit or limit freedom of navigation or overflight, subject to very limited exceptions.
- High Seas:
- The ocean surface and the water column beyond the EEZ are referred to as the high seas.
- It is considered as “the common heritage of all mankind” and is beyond any national jurisdiction.
- States can conduct activities in these areas as long as they are for peaceful purposes, such as transit, marine science, and undersea exploration.
Formulation of the UNCLOS
The UNCLOS replaces the earlier concept of areas of the sea belonging to states coupled with international waters and developed due to conflicts between states over areas of the sea. The area of the coastal sea that states could control through history had generally been that area that states could control through its navy. Thus the areas extending over a 3 mile area from the coasts of nations over time came to represent the areas of coastal sea that states could administer.
The areas of the sea not coming under the jurisdiction of states i.e. international waters, later would form various sub-categories under the UNCLOS. These areas that since the 18th Century were generally understood as territories of the sea legally belonging to states were very troublesome, especially in case of overlapping of territories or encroachment and detention. The ambiguities created during the Second World War led to an international churning for the UN’s International Law Commission to establish a proper codification system for these disputes over the world’s oceans.
The UN’s International Law Commission began working on this issue and prepared the 4 draft conventions by 1949. Between February 24 and April 29, 1958, international negotiations and meetings ensued for the first UN Conference on the Law of the Sea – UNCLOS I. The basic form of the 4 draft conventions were adopted in UNCLOS I, and these are known as the 1958 Geneva Conventions. However, the limits established by this round of meetings did not prove adequate, although it established certain outlines of the sections that the UNCLOS would address.
The UNCLOS II held in 1960 led to similar disagreements over the finer contents of the draft, especially over the breadth of the territorial seas and over rights concerning fishing activities. The third conference held between 1973 to 1982 – UNCLOS III – would prove to the final such conference, and was finally passed on November 14, 1994 including the participation of 160 states.
A Brief Overview of the UNCLOS in Practice
The UNCLOS may be comprehensive in defining the scope of human intervention over the seas, but as a legal instrument it is at the most a framework convention that works in conjunction with national laws, international treaties, organizations and other conventions (S.O. Williams, 2014). However, the advantage offered by the UNCLOS is the comprehensive enumeration of maritime zones and the rules for operations wherein – a combination that is the first of its kind. The UNCLOS also offers legal instruments for assessing and responding to maritime threats many of which were previously not clearly defined.
However, since the UNCLOS is subject to the behaviour of individual states, many a time its rules have been flouted in a global system that tends to favour the United States in terms of international law, geopolitics, etc. An example is China’s behaviour in the South China Sea. China claims historical rights over about 90 per cent of the waters of the South China Sea, which became an issue since the Philippines challenged this with a lawsuit under international law.
China on its part refused to acknowledge a ruling by an international tribunal under the UNCLOS to cede its claim. This dispute was accompanied with Chinese military activities in the South China Sea that faced global opposition led by the United States, which is usually the chief arbiter of international dispute resolution.
This is also curious due to the fact that the United States has military bases in numerous locations all over the world close to marine habitats, giving it rapid access to geopolitical zones in international waters worldwide. Resistance by many states to UNCLOS clauses comes with a need to assert their autonomy in a global regime led by the US and its allies, other than geopolitical considerations towards other member states.
India’s position in this particular dispute has been one of diplomatic negotiations over the lawful and peaceful negotiation of the dispute under the UNCLOS. India follows much of the rest of the world in that the UNCLOS is a widely accepted legal document in state practice all over the world, such that many observers point towards the UNCLOS being a proxy customary international maritime law. The Act places between 2.2 to 2.8 million square km of sea under India’s jurisdiction, the boundaries are not clearly demarcated, such as the critical one between Indian and Pakistani waters, that includes the Sir Creek area.
India has a special need for the UNCLOS, as the medium of transit for 90 per cent of India’s trade is through the seas and oceans. Also 65 per cent of the known oil reserves globally are located in the Indian Ocean region, with 40 per cent of global offshore reserves with countries having coasts by the Indian Ocean (P.A. Jayan, 2013). An international legal regime becomes even more important thus given the piracy and business practices involved in these regions. The Indian Express (2017) reports that the year 2011 alone witnessed 237 attacks by pirates in the Indian Ocean region, making international legal co-operation even more necessary.
Although the UNCLOS for India is a very valuable document to protect trade and resource exploitation in the region, it can also provide an effective legal framework to protect marine species and environments from anthropogenic activities.
Part XII of the UNCLOS is titled ‘Protection and Preservation of the Marine Environment’ which obliges states to protect the environment, along with comprehensive clauses throughout the agreement for the protection of marine life.
Given India’s diminishing fishing stock and commercial poaching and illegal trade in marine goods that have for example wiped out large populations of species such as sea cucumbers and sea horses off India’s coasts, India must utilize the treaty for environmentally sustainable use of its areas specified under the UNCLOS as well, and not subject the Convention merely to utilitarian use.
The Convention represents a great opportunity for India to co-operate internationally on conservation matters on a legal basis, and thereby achieving sustainable use of the surrounding seas can potentially reap great benefits.