UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA

THE LAW OF THE SEA:

The law of the sea consists of rules that govern the use of the sea and its
resources and the environment as a whole. One of the principal subjects
of the law among nations is the law of the sea and it is a blend of
emerging or pre-established customary law and treaties. The law of the
sea encompasses duties, freedoms and rights in the areas of fishing,
protection of the aquatic environment, cultural heritage, wrecks,
territorial waters, shipping, high seas and dispute settlement.1

BEFORE UNCLOS:

The UN Convention on the Law of the Sea2 supersedes the older concept
of 'freedom of the seas' dating back to the from the 17th century. In that
period, national rights were restricted to a specific marine area,
generally extending to 3 nautical miles (5.6 km) (a three-mile limit from a
nation's coast), as per the rule developed by Dutch jurist Cornelius van
Bynkershoek, called the 'cannon shot' rule.3 According to the mare
liberum principle propounded by Hugo Grotius, “all waters beyond
national boundaries were considered international waters; free to all
nations, but belonging to none of them.”4

In the first half of the 20th century, a few nations expressed their desire
to increase national claims. They wanted to include mineral resources, to
provide the means to enforce pollution controls and to preserve fish
stocks. In order for this desire to attain fruition, the League of Nations

1 Anthony Aust, Handbook of International Law (Cambridge University Press, 2nd ed

2010
2 United Nations Convention on Law of the Sea.
3 Akashi, Kinji (2 October 1998). Cornelius Van Bynkershoek: His Role in the History of
International Law. Martinus Nijhoff Publishers. p. 150. ISBN 978-9041105998.
Retrieved 12 July 2016.
4 "The Freedom of the Seas (Latin and English version, Magoffin trans.) – Online Library
of Liberty". oll.libertyfund.org.
called a conference at The Hague, Netherlands in 1930, but no
agreements resulted.5 President Harry S. Truman extended United States
control to all the natural resources of its continental shelf using the
customary principle of a nation's right to protect its natural resources, in
1945. Other nations were quick to follow suit. Between the years 1946
and 1950, the countries of Chile, Peru, and Ecuador extended their rights
to 200 nautical miles in order to cover their Humboldt Current fishing
grounds. Other nations extended their territorial waters to 12 nautical
miles.

Only 25 countries still used the old 3-mile limit by the year 1967. 66
nations had already set a 12-nautical-mile territorial limit and eight
others had set a 200-mile limit. As of 2008, only two countries used the 3-
mile limit and those are Jordan and Palau. 6 The same limit is also used in
a few Australian islands viz, aa portion of Belize, a few Japanese straits,
some areas of Papua New Guinea, and some British Overseas Territories,
like Anguilla.

UNCLOS AND ITS FORMATION:

The United Nations Convention on the Law of the Sea (UNCLOS) is an

international treaty which was signed and adopted in Montego Bay in
1992, toward the end of around ten years of negotiations between 1973
and 1982. It supplanted the four Geneva Conventions of April, 1958,
which concerned the continental shelf, the high seas, the contiguous zone
and the territorial seas and the angling and conservation of living
resources in those high seas. The new text is more progressive in the
international context, in that it includes all the different aspects, the
various zones and their exercises and outcomes (different sorts of
pollution, for instance). It fused all the actualities in the four conventions

5 "Chapter 1: International Law, Adoption of the Law of the Sea Convention – Law of the
Sea". Law of the Sea: A Policy Primer. The Fletcher School of Law and Diplomacy at
Tufts University.
6 "Table of claims to maritime jurisdiction" (PDF). United Nations Division for Ocean
Affairs and the Law of the Sea. Retrieved 1 May 2009.
adopted earlier within a progressive international outlook while evolving
new principles. Its preamble depicts the methodology that had been
embraced: "… the problems of ocean space are closely inter-related and
need to be considered as a whole". It is presented, and as it should be, as
a " legal order for the oceans and seas".

The Convention in this manner officially affirms existing maritime areas,

from the coast to the open sea, and from the surface to the seabed or, as
with regard to Exclusive Economic Zones (EEZs), makes them along the
span of its evolution. The fitting political body to deal with them is the
General Assembly of the United Nations. This rule is reviewed every year
in the resolution on the law of the ocean received by the UNGA. The
Convention has made three new establishments on the global scene: –
the International Tribunal for the Law of the Sea, headquartered in
Hamburg, – the International Seabed Authority, headquartered in
Kingston, – the Commission on the Limits of the Continental Shelf,
situated in the United Nations Headquarters in New York.

The Convention happened in November, 1994. It presently hosts 162

members including the European Union for a lot of locales. As a rule, the
USA is the most significant non-endorser of the UNCLOS, exclusively
because of its solid restriction to the system concerning abuse of
characteristic assets on the seabed past national purviews. Besides this
specific position, the USA thinks about the standards of the Convention
as a continuation of existing guidelines in the law of the ocean, since they
are the statement of standard law (for instance, opportunity of route and,
when all is said in done, rules applying to the high oceans); somewhere
else, the USA has incorporated lawful substances made by the
Convention into its national law, for example, the Exclusive Economic
Zone or EEZ. The Convention comprises of 320 articles, together with 9
addendums on various themes. It has been the subject of two usage
Agreements: The Agreement concerning Part XI of the Convention dated
July, 1994, and the Agreement with respect to alleged covering stocks,
confirmed in August, 1995. A State might be a Party to the Convention
without being a Party to both of these Agreements. This circumstance
isn't explicit to the law of the ocean: it can likewise be found in what one
may call the Barcelona framework (the Barcelona Convention and its
various Protocols, every one of which is liable to its very own terms of
sanction and therefore execution).

GENERAL PRINCIPLES ON SETTLEMENT OF DISPUTES

BETWEEN STATES

“Consent Principle”

A court or tribunal cannot resolve disputes between States on any issue

on the law of the sea unless both States consent to said settlement. The
various modes of consent are:

I. An agreement, ad hoc for a particular dispute

Examples of such agreements would be:

 The one between Malaysia and Indonesia to refer the dispute to

the ICJ on the sovereignty over islands of Ligitan and Sipidan.7
 The one between Singapore and Malaysia to refer the dispute to
the ICJ, on the matter of sovereignty over Middle Rocks, South
Ledge and Pedra Branca.8

II. Article 36 of the ICJ Statute and Optional Clause Declaration

Article 36(2) clearly states that “The states parties to the present
Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other
state accepting the same obligation, the jurisdiction of the Court in all
legal disputes with respect to:

– (a) the interpretation of a treaty;

7 The Ligitan and Sipadan dispute [2002] ICJ 3.

8 The Pedra Branca dispute [2008] ICJ 2.
 – (b) any question of international law; . . .”9

Declarations under Article 36(2) have been made by more than 60

states.

III. Dispute Settlement Clause in a Treaty

 Bogota Treaty 1948 - Pacific Settlement of Disputes

If the procedure for dispute settlement laid down by the treaty in force or
by an agreement between the parties, does not result in conciliation
between the parties, and is the treaty also does not stipulate a procedure
involving arbitration, then either of the parties is entitled to seek
recourse at the ICJ through the process provided by Article 40 10 in the
Statute of the International Court of Justice. As per Article 36 11, para 1 of
the Statute, the Court shall have compulsory jurisdiction in such cases.

 Article 28612, UNCLOS 1982

Application of procedures under this Article, subject to Section 3 13, states

that any issue that concerns the application or interpretation of the UN
Convention on the Law of the Sea shall, if no settlement has been
reached by recourse to Section 114, be submitted at the desire of any
party to the dispute to the tribunal or court having jurisdiction under this
provision.

PRE-UNCLOS LAW OF THE SEA CASES

The Corfu Channel Case (1949, ICJ)15

UK v Albania - Special Agreement

9 Article 36(2), Statute of The International Court of Justice.
10 Article 40, Statute of The International Court of Justice.
11 Article 36, Statute of The International Court of Justice.
12 Article 286, United Nations Convention on Law of the Sea.
13 Part XV, Section 3, United Nations Convention on Law of the Sea.
14 Part XV, Section 1, United Nations Convention on Law of the Sea.
15 UK and Northern Ireland v. People’s Republic of Albania, [1949] ICJ Rep 4.
The jurisdiction was accepted by Albania through communication to ICJ
Issues with regard to the passage of warships from Britain through the
Corfu Channel and the overt act of Britain in sweeping the channel for
mines after one of its ships having hit a mine. The Albanian claim
conflicts with the generally admitted principle that nations, in time of
peace, have the right to send the warships that belong to the State
through straits that are used for international navigation between two
sections of the high seas, provided that the passage is innocent and
without mala fide intention.

The Anglo-Norwegian Fisheries Case (1951, ICJ)16

UK v Norway

The straight baselines utilised by Norway along its deeply indented coast
was an Optional Clause Declarations Issue and the ICJ upheld the
legitimacy of Norway’s baselines. The judgment from the case was so
impactful that it was stipulated under Article 4 17 of the Convention on the
Territorial Sea and Contiguous Zone and under Article 7 18 of UNCLOS on
straight baselines.

The North Sea Continental Shelf Case19

Germany v Denmark & Netherlands, 1969

The Optional Clause Declarations Issue for consideration by the court

was, what principles regulated the delimitation of maritime boundaries
for Germany? The ICJ held that the “equidistance-special circumstances
rule” as under the 1985 Convention was not binding on Germany, as
Germany was not party to it. The ICJ emphasized on “equitable
principles” and the natural extension of territorial boundaries. As a result

16 The United Kingdom v Norway [1951] ICJ 3.

17 Article 4, The Convention on the Territorial Sea and Contiguous Zone.
18 Article 7, The United Nations Convention on the Law of the Sea.
19 Germany v Denmark and the Netherlands [1969] ICJ 1.
of the verdict, there was a great difficulty in reaching an agreement
under Articles 74(1)20 and 83(1). 21

The Fisheries Jurisdiction Case22

(ICJ, UK v Iceland, 1974)

The jurisdiction of the Court was based on the clause in Exchange of

Notes. The issue up for consideration was the legitimacy of the Fishing
Zone which was declared by Iceland: between 12 nautical-miles and 50
nautical-miles. The Court held that as a coastal State, Iceland had
“preferential rights”. However, it was suggested that Iceland recognize
the “historic rights” of the UK. The case was decided at the start of the
Third UN Conference. The ratio of the judgement was not accepted in the
conference where it was decided that coastal States would have the
“sovereign right” to explore and also exploit the natural resources
available within 200 nautical-miles EEZ”.

POST-UNCLOS DISPUTE SETTLEMENT

UNCLOS provides four alternative dispute settlement mechanisms: The

International Court of Justice, the International Tribunal for the Law of
the Sea (ITLOS), a special arbitral tribunal (constituted in as per Annex
VIII of the Convention) and an arbitral tribunal (constituted as per Annex
VII of the Convention). The States are given the choice of one or more of
these mechanisms, which can be adopted if a dispute arises. A written
declaration for the same has to be made in accordance with Article 287
of the Convention and has to be deposited with the Secretary-General of
the UN.

20 Articles 74(1), The United Nations Convention on the Law of the Sea.
21 Articles 83(1), The United Nations Convention on the Law of the Sea.

22 UK v Iceland [1974] ICJ 3.

ITLOS:

The International Tribunal for the Law of the Sea (ITLOS) is a judicial
body which has been constituted as per the UNCLOS provisions. Its
primary function is to adjudicate upon disputes, providing advisory
opinions on the application and interpretation of UNCLOS. The Tribunal
consists of 21 independent members, who are elected from among people
enjoying the highest reputation for integrity and fairness and an expert in
the field of the law of the sea. It has jurisdiction over any issue
concerning the application or interpretation of UNCLOS, and over all
issues specifically provided for, in any other agreement between States
which confers jurisdiction on the Tribunal. 23 The Tribunal is open to
States and International Organisations who are parties to the
Convention. It is also open to entities other than States and
intergovernmental organisations who are not parties to the Convention,
and to private entities and to state enterprises "in any case expressly
provided for in Part XI or in any case submitted pursuant to any other
agreement conferring jurisdiction on the Tribunal which is accepted by
all the parties to that case"24

The first case decided by the ITLOS was the M/V "SAIGA" Case25 in 1997.
The ITLOS has, till date, decided on 27 disputes.

ENRIKA-LEXIE CASE26:

In 2012, two Indian fishermen on board the St. Antony (fishing vessel) on
the Arabian Sea were shot dead allegedly by two Italian marines who
were on board the Italian oil tanker, the Enrika Lexie. The vessel was
approximately 20.5 nautical-miles off the coast of Kerala, when the crime
took place. The Italian oil tanker continued sailing for approximately 3

23 Article 21, Statute of The International Court of Justice.

24 Article 20, Statute of The International Court of Justice.
25 Saint Vincent and the Grenadines v. Guinea, ITLOS Case No 1.
26 Italy v India, ITLOS Case No 24.
hours post the occurrence of this crime. The Italian oil tanker was
intercepted by the Indian Coast Guard when it was approximately 59
nautical-miles off the shore and gave it orders to navigate to the nearby
port of Kochi. At Kochi, both the Italian marines were arrested and they
were charged with murder under Section 302 of the Indian Penal Code.
The jurisdiction over the crime was contested by India and Italy. Italy
approached the Court, and sought provisional orders from the
International Tribunal for the Law of the Sea in order to compel India to
stop prosecution of the marines and release them as they were held in
custody until the UNCLOS Arbitral Tribunal could determine which State
can exercise the jurisdiction over the case at hand. This decision delves
deep into the core issues of jurisdiction in marine cases involving vessels
in the high seas. Italy claimed exclusive jurisdiction as the flag state. It
also claimed “functional immunity” for the Italian marines because they
had acted to protect Italian interests. India on the other hand has
claimed jurisdiction as the flag state of the fishing vessel St Antony and
as the victim state in the incident. The ITLOS, in this case, has made an
attempt to balance the competing rights of both the states.

INTERNATIONAL ORGANISATIONS:

UN Division for Ocean Affairs and the Law of the Sea: This Division
is the secretariat of UNCLOS. The organisation provides access to
General Assembly reports, the Convention and related agreements, and
other information about dispute settlement mechanisms and access to
sea-related materials. Under this Division are two bodies that have been
established by the Convention - the International Seabed Authority which
is an international organisation, autonomously run, administering
mineral resources in the field and the Commission on the Limits of the
Continental Shelf (CLCS). 27

27 Legal Order in the World's Oceans: UN Convention on the Law of the Sea by Myron
H. Nordquist, John Norton Moore & Ronán Long (eds).
UN Oceans: This organisation was created to enhance coordination and
cooperation amongst the secretariats of the international organisations
concerned with marine activities. The UN Oceans consists of relevant
entities, programs, and other specialized agencies of the UN system and
the secretariats of international conventions, including that of the
International Seabed Authority and that of the Convention on Biological
Diversity.

The International Maritime Organisation (IMO): The IMO is a

specialised agency under the auspices of the United Nations and is
responsible for the betterment of maritime safety and the prevention of
pollution by ships. It also serves as a repository for treaties entered into
by States in relation to marine pollution, maritime safety, compensation,
liability and other conventions that deal with shipping. 28

The Intergovernmental Oceanographic Commission: The IOC

formed under the auspices of the UNESCO provides members of the UN
with a mechanism for global cooperation and mutual coexistence in the
study of the seas, through the sharing of information, knowledge, and
technology and also through the coordination of national programs
between various States. The IOC conducts various activities in the areas
of protection of the marine Environment; fisheries and ecosystems;
climate change; coastal area management; data and ocean observing and
monitoring along with information management and mitigation of
disasters.

THE FUTURE:

Tending to the anthropogenic weights on marine biological systems, for

example, marine contamination, overexploitation of marine resources,
beach front corruption, environmental change and sea fermentation, and
their effects requires powerful cross-sectoral coordination and broad
collaboration among States at worldwide, local and bilateral levels,
including through intergovernmental associations. Global law, as
reflected in UNCLOS, gives the most grounded premise to such
28 Law of the Sea: UNCLOS as a living treaty by Jill Barrett & Richard Barnes (eds).
participation, and its viable usage is consequently basic to the economic
advancement of seas and their resources.