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International Law Of The Sea: An Evaluation Of The Contemporary Conflicts From The Perspective Of India (By-Tavneet Kaur)
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Article Details
International Law Of
The Sea: An Evaluation Of The Contemporary Conflicts From The Perspective Of
India
Authored By-Tavneet
Kaur
Student of LLM
(International Law), UILS, Chandigarh University
Abstract
The law of the seat at the international level has always been a subject
of argument given contributory rights of the states on the utilisation and
exploration of the sea considering different parts of the same. Sea takes over some of
the most important areas of human life given its contribution to human life
development. Fishing as well as shipping can be identified as two of the
primary areas of the sea concerning human operations. Also, given human
development, there are many other cases concerning the utilisation of
technology and attempts to satisfy the needs of human beings that involve the
use of the sea. At the present scenario, since
the conception of the Law of the Sea, there have been many issues in the course
of dealing with the law of the sea at the international territory.
Focusing on the development of trade during the 20th century as well as the
inexhaustible realisation of the use of the sea, the principle concerning the
Freedom of the Sea was introduced. This also directly concerned the law of the
sea at the national as well as international level. Now, given the contemporary
issues in relation to the law of the sea as confronted by India, the article
will be critically evaluating the issues and stand of India in that scenario.
Introduction
Sea takes over some of
the most important areas of human life given its contribution to human life
development. Fishing as well as shipping can be identified as two of the
primary areas of the sea concerning human operations. Also, given human
development, there are many other cases concerning the utilisation of
technology and attempts to satisfy the needs of human beings that involve the
use of the sea. Furthermore, many other resources as well as minerals followed
by natural gas and oil as well as sand and gravel along with diamond and gold
were recognised to be made from the seabed. Focusing on the development of
trade during the 20th century as well as the inexhaustible realisation of the
use of the sea, the principle concerning the Freedom of the Sea was introduced.
This also directly concerned the law of the sea at the national as well as
international level. Now, given the contemporary issues in relation to the law
of the sea as confronted by India, the article will be critically evaluating
the issues and stand of India in that scenario.
Contemporary
Conflict Of The Law Of The Sea
At
the present scenario, since the conception of the Law of the Sea, there have
been many issues in the course of dealing with the law of the sea at the
international territory. For instance, back in 2016, a United Nations tribunal
specifically concluded China for its violation of the UNCLOS concerning its
operations within the EEZ or the “Exclusive Economic Zone” of
Philippines, which is eventually interfering with the fishing activities as
well as petroleum activity followed by constructing artificial features, as
well as conducting law enforcement activities leading to near-collisions at the
sea. It was also suggested that the Philippines has the commitment concerning
the delineation and delimitation of its maritime boundaries with regard to the
adjacent states according to the UNCLOS (French, 2017). Furthermore, under the
governance of the UNCLOS, the Philippines has been found to be obliged
concerning the protection and preservation of the marine environment outside
and within its maritime zones. It has also been critically evaluated that China
has claimed certain particular and historic rights in certain areas that are
particularly beyond 200 M from the country’s mainland coasts and any land
featuring over which it particularly claimed sovereignty, whereas, within 200 M
of the coasts concerning the main islands of the Philippines, and allegedly
exploited the resources in those mentioned areas while trying to prevent the Philippines
from doing the same (Kopela,
2017).
In this case, the Philippine specifically claimed sovereignty over the features
that are known as Scarborough Shoal and also, the KIG to be independent with
regard to its archipelagic status both legally as well as historically. It
should be critically analysed that taking into consideration the contemporary
issues persisting between China and the Philippines, it should be a matter of
concern for the other countries following the UNCLOS as the international sea is
shared by the neighbouring states and certainly have a potential of increasing
the impact of the contemporary issues.
Role Of The
UNCLOS
The “United Nations Convention for the Law of
the Sea” or UNCLOS is recognised as the Law of the Sea. It can also be
addressed as an international treaty or agreement establishing rules as well as
guidelines concerning the use of the world’s oceans as well as seas, with
regard to the utilisation and conservation of marine resources and also to
secure the preservation as well as protection of all the living beings existing
in the sea. This particular treaty was recognised to be signed on 10th December
in 1982 in Montego Bay, Jamaica. As a result of the “United Nations
Conference on the Law of the Sea”, taking place from 1973 to 1982, and
coming into force in 1994, was declared to be the dominating law of the sea.
The convention under consideration specifically defines several maritime zones
for the better establishment and execution of the laws so concerned. It
particularly included the baseline, territorial waters, contiguous zone,
exclusive economic zone (EEZ), continental shelf and the international seabed
area. The EEZ in this case, is recognised to be the international water, to be
accessed as well as used by different countries for economic purposes (Strati,
2021). At present, it has been recognised that
there is no limit and boundary specifically set for commercial as well as
marine business concerning these international waters.
Multiple countries have particularly expressed
their desire concerning the expansion of their respective national maritime
zones, and the use of natural resources followed by the protection of fish
stocks as well as reducing pollution (Kohl, 2017). The “League of Nations” particularly held
a conference to address these issues at The Hague in 1930; however, it has
particularly failed to reach any agreement. Back in the 20th century, there was
a significant increase in the case of technological development in fisheries as
well as oil production within the maritime scope, where countries are capable
of finding and using natural resources.
India’s
Position On The Conflict Of The Law Of The Sea
It
has been studied that India has particularly claimed the contiguous zone
concerning its extension of 24 nautical miles by taking into consideration its
intention of enacting the “Maritime Zones Act of 1976”. As suggested by
W.Friedman, the definition of continental shelf could be detailed to be the
zone attached around the continent extending from a low water line till the
depth and which is usually marked towards a greater depth. It has also been
assessed that it is commonly referred to as a “continental shelf”, which
is a sloping platform covering continents as well as islands. Furthermore, this
is considered to be a submerged seabed bordering continental landmass as well
as is addressed as an extension and even part associated with that land. It was
also evaluated that it usually extends to a depth of 200 metres. Apart from
that, the coastal countries possess limited sovereignty rights concerning the
continental shelf for the exploration and utilisation of the “natural
resources”, and not ultimate sovereignty. “The Maritime Zone Act”
has particularly defined the position of India that the country has declared to
be a continental shelf to be nearly 200 nautical miles from the land (). It has
been assessed that the rights and obligations of India under this particular
command could be recognised to be similar to those in different countries, as
per the stipulation concerning the international conventions. However, the
government is capable of declaring the continental shelf as well as its magical
waters for a particular area and taking action with regard to regulating it.
An “exclusive economic zone” or EEZ can be
identified to be an area of the sea zone as prescribed by the UNCLOS. Over this
area, a state possesses multiple rights concerning the exploration as well as
utilisation of marine resources with the inclusion of energy production from
water as well as wind. It particularly stretches from the baseline up to 200
nautical miles from its coast. In terms of geography, the EEZ may also
sometimes include the continental shelf of a state.
The primary difference existing between the
territorial sea taking into consideration its 12-mile rule, followed by the EEZ
or “exclusive economic zone” is that when the territorial sea
particularly confers ultimate sovereignty over the waters and in that case, EEZ
can be recognised to be merely a sovereign right referring to the coastal State
particularly below the surface of the sea. An instance associated with an EEZ
or exclusive economic zone can be identified to be the Bombay High, existing
between 73 to 74 NMs of the coast of India that is
being used for the exploration of oil by the
government of India. It is to be assessed in this case that Section 7 of the “Maritime
Act of 1976” specifically provides exclusive rights for the exploration as
well as and exploitation of the natural resources within EEZ or “exclusive
economic zone”.
Flag State
Rule
Taking into consideration the legal point of view,
a vessel and a ship as well as an aircraft or the submarine would be required
to be registered in a specific country, taking into consideration all practical
reasons, it must display or fly the flag concerning the registered country. In
this case, it could be observed that “The Flag State rule” would
particularly be applicable for both military as well as commercial ships, along
with all types of oil tanks as well as cruise ships. However, presently, Panama
as well as Liberia are recognised to be the two countries having a maximum
number of ships that are registered; yet, most of the ships have been found to
be broken down as well as sold as junk in Alang, Gujarat. It was also
recognised that the principle of the “The Flag State rule” has also been
particularly implemented under the governance of Part VII Article 92 of the
UNCLOS and also in environmental disputes, it was assessed that “the Flag
State rule” can further be implemented under the governance of
Article 217 (1) of the UNCLOS, 1982.
As evaluated from the case of “S.S Lotus case
(France Vs. Turkey, 1927)”, back in 1925, on the liberalisation of the
Turkish economy, the country started its expansion of trade outside the country
borders with other countries. However, unfortunately, it was found that a
French vessel S.S lotus along with a Turkish ship S.S Bozkurt collided, due to
which the Turkish ship was severely damaged and allegedly killed 8 Turkish
Nationals on the Turkish vessel. On the other hand, the remaining survivors on
that ship were thereby taken to Turkey (Chinkin et al., 2019). In Turkey,
the French boat captain, followed by the first watch officer and Monsiver
Demons, were accused of killing and Demons was condemned to detainment and
fine. The French government requested the arrival of Monsieur Demons and the
exchange of his case to the French Court. Turkey and France consented to elude
the question to the PCIJ (“Permanent Court of International Justice”).
The French and the Turkish government were firmly accusing one another and
Monsieur Demons was being charged by the Turkish government with purposely
causing the mishap. The French government further argued that they reserve a
privilege to preliminary size the individual on the grounds that the episode
included a French
boat and a French National. The PCIJ in this case
held that Turkey had disregarded no standards of International Law by
organising a body of evidence against Monsieur Demons and furthermore reserved
no options to indict him. After this judgement, there was an immense analysis
and after the development of the United Nation, certain progressions were given
the Flag State rule.
Rights Of
The Coastal State
Critically examining the rights of the coastal
states, it was observed that the states do not have the right of exercising
sovereignty over the coastal state. It was thereby assessed that the states
will exercise their respective sovereignty rights for the exploration and
exploitation of minerals and non-living resources in the ocean floor as well as
soil during the primary 5 years concerning production at that given place. In
this regard, the speed will be increasing by approximately 125th with regard to
the value of each resulting year till 12 years (Kohl, 2017). It will also stay seven-membered thereafter. On
the off chance that coastal states don't exploit as well as explore the sea
minerals and other assets where no elective state could attempt these exercises
without its particular assent. Nonetheless, the privileges of the coastal state
over the seabed don't meaningfully affect the system opportunity of route on
the high oceans or that of the airspace higher than the superimposed waters. The
States can't practise power over coastal states. They will practise power
privileges to investigate and take advantage of minerals, non-residing assets
of the sea depths and soil during the essential 5 years of creation at that
spot. The speed will increment by 125th of the worth of each subsequent year
till 12 years and will remain seven-membered from there on.
Conclusion
From the evaluation of the critical analysis, it is observed that the
law of the seat at the international level has always been a subject of
argument given contributory rights of the states on the utilisation and
exploration of the sea considering different parts of the same. It was also
critically evaluated that there are multiple contemporary issues concerning the
coastal states with regard to the utilisation of the EEZ. For instance, the
case of China and the Philippines have found their place of discussion for a
long time now, with no particular solution to the concern yet. Hence, it is
assumed that the issues associated with the exploitation and exploitation of
the sea for the coastal states, need to be tackled with a collaborative
approach at the international level given its complex nature.
References
Chinkin,
C., Heathcote, G., Jones, E. and Jones, H., (2019). Bozkurt Case, aka the Lotus
case (France v Turkey): ships that go bump in the night. Hart.
French,
D., (2017). In the Matter of the South China Sea Arbitration: Republic of
Philippines v People’s Republic of China, Arbitral Tribunal Constituted under
Annex VII to the 1982 United Nations Law of the Sea Convention, Case No.
2013-19, Award of 12 July 2016. Environmental Law Review, 19(1),
pp.48-56.
Kohl,
A.W., (2017). China's Artificial Island Building Campaign in the South China
Sea: Implications for the Reform of the United Nations Convention on the Law of
the Sea. Dickinson L. Rev., 122, p.917.
Kopela,
S., (2017). Historic titles and historic rights in the Law of the Sea in the
light of the South China Sea arbitration. Ocean Development &
International Law, 48(2), pp.181-207.
Strati,
A., (2021). The protection of the underwater cultural heritage: an
emerging objective of the contemporary law of the sea. BRILL.
Article Information
International Law Of The Sea: An Evaluation Of The Contemporary Conflicts From The Perspective Of India (By-Tavneet Kaur)
Authors: Tavneet Kaur
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/12
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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