WHAT IS LAW OF THE SEA

It is a well-known fact that since time immemorial ‘SEA’ or ‘OCEANS’ has been fundamental to human life as it
consists of numerous uncontrolled natural resources underneath its vast body of waters. The fact that such a body of
waters is shared by all the nations a need was felt to enact rules to regulate the administration and functioning of
these gigantic bodies of waters. ‘Law of Sea’ is a branch of public international law that binds the states and other
subjects of international law in their marine affairs. The instrument that regularizes sea-related issue is called ‘United
Nations Convention on the Law of The Sea’ (hereinafter called as UNCLOS)[1]

2.IMPORTANCE OF THE ‘CONVENTION ON LAW OF THE SEA’

The sea has always played a vital role by acting as a vast reservoir of resources and a medium of communication.
These basic functions prompted the international community to draft rules concerning the use of the sea. The ocean
floor has been home to several important minerals such as oil and natural gas playing a major role in meeting the
world’s energy needs. Prior to the UNCLOS, the nations used to exploit the principle of ‘Free sea’ by dominating the
oceans for their own use which results in disagreements and issues. Thus, the said convention was brought in force
to resolve and regulate the International Community’s control over the sea.

3.HISTORY AND EVOLUTION OF UNCLOS[2]

The modern law of the sea has emerged from the customary international law regime based on the principle of
‘Freedom of the seas’ prevalent in the mid-17th century. A Dutch lawyer ‘HUGO GROTIUS’ in his famous book titled
‘Hugo Grotius, Mare Liberum’ advocated the principle of ‘Free Sea’. According to the said principle, the sea was to be
considered to be free and open to use by all countries. No nation can claim its sovereignty over the sea and no right
is given to any nation to claim things which may be used by everybody and are exhaustible. Therefore, he claimed
that oceans were open to navigation, trade and fishing by all. With the passage of time, many maritime powers
started to gain consensus over asserting sovereignty rights over the waters immediately adjacent to its coasts. UK &
France claimed the 3-mile territorial sea zone in the 17th century which was based on a ‘cannon shot’ rule
propounded by the Dutch Jurist Bynkershock. The said rule was based on a rationale that the limit of territorial
waters can be determined by firing a cannon in the open sea and the distance covered by such a cannon shall be the
limit over which the state could govern its sovereignty. Later stats such as Russia came up with their own limit of 12-
mile fishing zone in the early 1900s.

3.1 CODIFICATION OF THE LAW OF THE SEA

As many nations made claims to protect their economic and military interests over the seas, the stress for the
codification of the ‘law of the sea’ increased so as to resolve maritime issues and strive uniformity among the nations
with respect to the oceans.

a) Hague Conference for the Codification of International Law (1930)

The major aim of the conference was to codify three major subjects, namely nationality, state responsibility and
territorial waters. The conference, however, failed to reach a consensus on the question of the breadth of territorial
waters and the problem of the contiguous zone. But the concepts such as Principle of Freedom of Navigation,
Territorial Sovereignty over the territorial sea and the right of innocent passage through the territorial sea were
recognized at the Conference.[3]

b) 1st UN Conference on the Law of the Sea (1958) (Feb 24- April 29)

Post-World War II, a request was made to the UN International Law Commission (ILC) on behalf of the international
community to prepare a draft on the codification of laws relating to the oceans. The commission prepared four drafts
which were referred to the UN at the First UN Conference on the Law of The Sea (UNCLOS I) held at Geneva in 1958.
The Conference resulted in four conventions relating to:

● Territorial Sea and Contiguous Zone

● The High Seas

● Fishing and conservation of the living resources of the High Seas

● The Continental Shelf

Drawback- No consensus could be reached on the issue of breadth of the territorial sea.

c) 2nd UN Conference on the Law of The Sea (1960) (March 17- April 26)

The conference was organized on 17th March 1960 with the aim to determine the exact breadth of the territorial sea
including the exclusive fishery zone. With the participation of around 88 nations, the conference failed to adopt the
joint proposal of the USA and Canada which provided for a six-mile territorial sea + a maximum of the six-mile
exclusive fishing zone. The said proposal was turned down on the basis of one single vote resulting in failure of the
conference to achieve its aim.

d) 3rd UN Conference on the Law of the Sea (1973- 1982)

The said conference attempted to produce a single document on the Law of the Sea which would serve as a ‘package
deal’ covering all the aspects of the law of the sea. The treaty on ‘Law of the Sea’ was adopted by the Conference on
December 10, 1982, in Montego Bay, Jamaica after being ratified by 117 states. About 130 states voted in favor, four
nations (USA, Israel, Turkey, and Venezuela) voted against while seventeen nations abstained from voting. The treaty
came into force in November 1994 after achieving the requisite number of signatures. Presently, there are around
168 signatories to the Treaty along with the European Union. The treaty is a comprehensive code of rules of
international law on the sea comprising 320 articles and 9 Annexes. The treaty outlines countries’ territorial claim
over water within 12 nautical miles of their coastline, and claims over 200 nautical miles as an exclusive economic
zone to conduct scientific research and exploitation of marine resources. The treaty pushed back the long-standing
principle of ‘Freedom of the sea’ by placing exceptions to the free use of the sea. The treaty laid down various
regulating authorities such as the International Tribunal for the Law of The Sea, the Commission on the Limits of the
Continental Shelf and the International Seabed Authority; to resolve any marine issues.

MARITIME ZONES

The maritime zones recognized under international law include internal waters, the territorial sea, the contiguous
zone, the exclusive economic zone (EEZ), the continental shelf, the high seas and the Area.

The breadth of the territorial sea, contiguous zone, and EEZ (and in some cases the continental shelf) is measured
from the baseline determined in accordance with customary international law as reflected in the 1982 Law of the Sea
Convention.

Baseline – Article 5 of UNCLOS prescribes the ‘normal baseline’ as the default baseline which is drawn at the low-
water line along the coast, except where otherwise provided in the convention. The other Maritime Zones are
measured using the ‘Baseline’ as a base. Simply, it means an outline of the state’s coast. It helps to determine the
area of the state’s maritime jurisdiction and its sovereignty by creating a clear demarcation of state’s right over that
area. It is an intersection of the plane of low water with the shore.

Straight Baseline– Straight line principle is used where the configuration of the coastal area is highly complicated. It
is a system wherein specified or discrete points are drawn and joined across the low-water line. It is known as
straight base turning points. (Art. 7(1)).

Juridical Bays- Bays have a geographical/intimate connection with the land and are a subject of interests to the
territorial sovereign. The closing line of bays acts as a baseline for determining the breadth of the territorial sea. (Art.
10)

River mouths- Article 9 of UNCLOS talks about the baseline wherein the river flows directly into the sea. In such a
situation point should be drawn on the low-water line of its bank and joined to form a straight line across its mouth.
Thereby, defining a baseline.

Ports- In order to delimit the territorial sea, the outermost permanent harbor works which form an integral part of
the harbor system are considered as a part of the coast. However, off-shore installations and artificial islands are not
considered as permanent harbor work. ICJ explained the term ‘harbor work forming an integral part of the harbor
system’ in the 2009 Romania/Ukraine Case[8]. It ruled that these works are general installations that allow ships
to be harbored, maintained, or repaired, loading or unloading of goods. (Art. 11)

Low-Tide Elevation- It is that naturally formed area of land which is surrounded by and above water at low tide but
they are submerged at high tide. When a low-tide is situated at 12nm or less from the mainland, the low-water line
on that elevation could be used as a baseline to measure the breadth of the territorial sea. (Art. 13(2))

Internal Waters- It covers all water and waterways that lie inward side of the baseline from where the baseline is
measured. The coastal state can govern any law, regulate the use of any resource in the internal waters. It also
includes waterways such as rivers and canals. The state exercises its sovereignty over the internal waters in the same
way as it exercises on the land. (Art 8(1)). The baselines act as the seaward limit of internal waters from where the
territorial sea is measured. The right of the innocent passage does not apply to internal waters, however, as per
Article 8 of UNCLOS the right of innocent passage shall exist where the internal waters have been newly enclosed by
a straight baseline. The coastal state can exercise sovereignty over the foreign ships entering the port and can be
subject to the civil and criminal jurisdiction of the state under certain situations. ICJ in the Nicaragua Case[9], stated
that by virtue of ports falling under the territorial sovereignty of the coastal state, it may regulate access to its ports.

TERRITORIAL SEA/WATERS

Maritime belt’ or ‘territorial sea’ (formerly called the territorial waters) is that belt of the sea which is adjacent to the
coastal State and over which the coastal State exercises the sovereignty (subject only to a general right of innocent
passage on the part of foreign shipping vessels). It is different from the ‘internal waters’ in the sense that internal
waters lie within the boundaries of the State and they are used exclusively by the States themselves, right of
innocent passage is not available in respect of them. It is also different from ‘high seas’ which is free to the
commerce and navigation of all the States.

The possession of this territory is not optional, nor dependent upon the will of the State, but compulsory. Both the
Geneva Convention, 1958 and the 1982 U.N. Convention, have recognized this territory i.e. territorial sea. Territorial
sea has tremendous strategic, economic and navigational importance for the coastal States. Two important aspects
are involved in the concept of territorial sea. They are: breadth of territorial sea and the rights of States over the
territorial sea.
(1) Breadth of Territorial Sea: The determination of breadth of territorial sea has always been a contentious issue,
and up to 18th century the opinion was, that breadth of territorial sea extends to the range of a cannon shot which
at that time was 3 nautical miles. Art. 3,4,5

(2) Rights of States over Territorial Sea (^Coastal State exercise sovereignty not only over the territorial waters, but
also over air space above the territorial sea as well as to its bed and sub-soil. However, sovereignty is to be exercised
subject to this Convention and other rules of international law (Art. 2, 1982 U.N. Convention). It follows from the
regime of sovereignty that the coastal State has the exclusive right to appropriate the natural products of the
territorial sea.

The word sovereignty, however, is not used in an absolute or exclusive sense, and exception to it is the right of
innocent passage of the ships of other States. Thus, for international transport and communication some facilities are
provided to other States by the coastal State.

The court of Arbitration in the 1909 Grisbadara case[10]commented upon the judicial character of the territorial sea.
According to McNair ‘the maritime territory is an inseparable and essential appurtenance of land territory, the
possession of which is not optional but compulsory. Ships of all states have the right of innocent passage and transit
passage through international straits but it doesn’t give the right to enter the air space of territorial waters (Art. 17)

RIGHT OF INNOCENT PASSAGE

The doctrine of “innocent passage” reconciles the interests of the world community on the one hand, and the coastal
States on the other. The interests of the former lie in the fact that trade should be secure, economical and able to
expand whereas the interest of the latter lie in their ability to Prevent and ward off dangers to their security and well-
being which might costly, politically and economically.

Art, 17 of the 1982 Convention specifies that ships of all States (whether coastal or landlocked) enjoy a right of
innocent passage through the territorial sea. The term ‘passage’ may be defined as passing through the territorial sea
from high seas to high seas, and proceeding to or from a port; entry upon the territorial sea for any other purposes is
not ‘passage’, although it may not be illegal. Further, ship must have the purpose of traversing the territorial sea, and
if it enters for any other purposes (even though its action amount only to passing in the sense defined), it is not
innocent passage.

‘Passage’ is defined under Art. 18 as navigation through territorial sea which is continuous and\expeditious; however,
passage includes stopping and anchoring, but only so far as the same are incidental to ordinary navigation or are
rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or
aircraft in danger or distress.

Art. 19 defines ‘innocent’ and states that passage is innocent so long as it is not prejudicial to peace, good order and
security of coastal States, and take place in conformity with these articles and with other rules of international law.
The said article illustrates that spying, fishing, causing marine pollution, launching or taking on board any aircraft, any
other activity not having a direct bearing on passage, etc. shall be considered prejudicial to peace, good order and
security of coastal State. Further, passage of foreign shipping vessels shall not be considered innocent if they do not
observe such laws and regulations as the coastal state may make and publish in order to prevent these vessels from
fishing in the territorial sea.

Art. 20 state that in territorial sea, submarines and other underwater vehicles are required to navigate on surface
and show their flag. Art. 23 provides that foreign nuclear powered ships arid ships carrying nuclear or other
inherently dangerous/noxious nuclear substances shall, when exercising the right of innocent passage through the
territorial sea, carry documents and observe special precautionary measures as established by international
agreements.

As regards the duties of the coastal State, Art. 24 provides that the coastal State shall not hamper the innocent
passage of foreign ships through the territorial sea except in accordance with this Convention. Further, the coastal
State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.
As passage is a ‘right’, the coastal State cannot act arbitrarily. Position of Warships - Neither the U.N. Convention
1982 nor the customary international law- throw any light on the issue of innocent passage of LAW OF THE SEA 119
warships. Some States insist on the previous authorization of the coastal State for their transit; other States insist on
prior notification to the coastal State for their transit. Thus, coastal States consider passage of warships as an
infringement of their sovereignty or a disturbance to national security. The States which have claimed an unrestricted
right of passage have contended that this right has in practice been exercised for a long period and been recognized
by nations from time immemorial.

In Corfu Channel Case (ICJ, 1949), ICJ did not express an opinion on the right of passage of warships through
territorial sea. It limited its observations to the case of straits. However, some judges, in their dissenting views, made
observations on the issue of innocent passage of warships. Judge Alvarez felt that since war had been outlawed in
the U.N. Charter, the mission of warships can only be to secure the legitimate defence of countries to which they
belong. Judge Krylqy argued that there was no right of innocent passage through the territorial sea. Judge Azevedo
said that the position of warships in respect of passage was different from that of merchant ships, international Law
Commission had proposed that a State might make innocent passage of warships subject to prior authorisation, or
notification, but the State should normally grant innocent passage.

In 1989, U.S. and USSR made an important joint statement that ‘All ships, including warships, enjoy the right of
innocent passage through the territorial sea in accordance with international law, for which neither prior notification
nor authorisation is required’ [ILM 28 (1990) p. 1444]. However, as it is a joint statement made by two States, it is in
no way binding on other States. Indian Position - Indian position with respect to ‘right of innocent passage’ is the
same as in 1982 Convention, according to Sec.4, Para 1 of the Indian Maritime Zones Act, 1976. As to the question of
innocent passage of warships, Sec.4, Para 2 equates warships with submarines and underwater vehicles and enacts
that such ships/vehicles can only pass through Indian territorial waters after giving prior notice to the Central
Government.

Archipelagic Waters- ‘Archipelago’ denotes a group of islands in mid-ocean forming a single unit and regarded as
such historically. They are so closely interrelated to form an intrinsic geographical, economic, and political entity. (Art.
46(b)). ‘Archipelagic State’ is defined by Article 46(a) as a ‘state which is wholly formed by one or more archipelago
and other islands’. The waters enclosed by the archipelagic baseline irrespective of their depth or distance from the
coast are known as ‘Archipelagic waters’.

CONTIGUOUS ZONE

Contiguous zone is that part of the sea which is beyond and adjacent to the territorial waters of the coastal State. The
concept of contiguous zone developed due to the inability of coastal States to ensure effective Protection of all its
interests due to limited breadth of territorial sea.

Art. 33 of the 1982 Convention provides: (i) Contiguous zone may extend to 24 nautical miles from the baseline from
which the breadth of territorial sea is measured. Thus, the area of contiguous zone would be 12 miles beyond the
territorial sea. (ii) In the contiguous zone, the coastal State may exercise control to prevent the infringement of its
customs, fiscal, immigration or sanitary regulations and punish the infringement of these laws.

Thus, the contiguous zone, like territorial sea, imposes certain restrictions on the freedom of the high seas. It is
important to note that the juridical nature of contiguous zone is distinct from territorial sea, as the coastal States do
not exercise sovereignty in the contiguous zone (only police and revenue jurisdiction could be exercised); ‘security’ of
the coastal State is a notable absentee.

Since the 1982 Convention has made the concept of the Exclusive Economic Zone (EEZ), the contiguous zone is no
longer be described as a part of the high seas. Since Art. 3 3 is permissive, and since indeed the contiguous zone is
entirely in the area of EEZ where such a zone is claimed, it is perhaps doubtful whether a State is required to formally
claim or proclaim a contiguous zone as a precondition of the contiguous zone jurisdiction.

Indian Position - Under Sec.5 of the Maritime Zones Act, 1976, India also adheres to the 24 nautical miles rule, and in
contradistinction to the 1982 Convention, security of State is enumerated as one of the areas where India may
exercise control. The inclusion of “security” amongst the purposes of contiguous zone widens the authority of the
Indian Government over foreign ships in the contiguous zone, and jurisdiction of Indian courts extends to taking
cognizance of any offence.

CONTINENTAL SHELF

Every country bordering a sea has a continental shelf i.e., extension of the land territory beneath sea (submerged
landmass- the concept of continental shelf is mainly co-related with the exploitation of natural resources from the
sea adjacent to territorial sea. It was therefore of little importance until such exploitation became technically
possible.

The legal concept of continental shelf also regards it as a natural prolongation of the land mass of a coastal State, but
it is delimited at a certain distance. For the first time, legal sanctity was given to the concept by the Geneva
Convention, 1958; however, it instead of defining the meaning of the term, defined the area of the sea which may be
referred to as continental shelf. Definition under the Geneva Convention, 1958 Under Art. l, the Convention has laid
down that “the Continental Shelf is the sea-bed and sub-soil of the submarine areas adjacent to the coast, but
outside the area of the territorial sea, to a depth of 200 metres or beyond that limit to where the depth of
superjacent waters admits of the exploitation of natural resources of the said areas. Art.2 provides the coastal States
with exclusive sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural
resources.

The above definition is ambiguous and inadequate. The definition contains two alternative criteria for defining the
area of continental shelf: depth of the sea criterion and the exploitation criterion (A depth- limit of 200 metres was
prescribed because at that time exploitation of resources beyond that depth was not feasible. However, where the
exploitation of resources could be made beyond that limit, that area could be referred to as continental shelf based
on exploitation criterion. But it led to the States to interpret the area of continental shelf according to their own
convenience. The developed States applied the exploitation criterion. The United States want to explore oil and gas
upto 300 miles on the east coast continental slope at a depth of 4000- 5000 feet deep on the Atlantic coast. Thus, it
was feared that if a clear definition and delimitation of the continental shelf were not made at the earlier possible
time, the whole sea-bed might be partitioned by the advanced countries among themselves. In fact. Art. 1 of the
Continental Shelf Convention is said to be one of the most disastrous clauses ever inserted in a treaty of vital
importance to mankind.

Definition under the 1982 U.N. Convention £ln the North Sea Continental Shelf case (1969), the ICJ observed, “The
rights of the coastal States in respect of the area of continental shelf that constitutes of natural prolongation of its
land territory into and under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land, and as an
extension of it in exercise of sovereign rights for the purpose of exploring the sea bed and exploiting its natural
resources. In short, there is here an inherent right’ The court noted that what confers the ipso jure title which the
international law attributes to the coastal State in respect of its continental shelf is the fact that submarine areas
concerned may be deemed, to be actually part of the territory over which the coastal State had dominion, in the
sense that although covered with water, they are a prolongation or continuation of that territory, an extension of it
under the sea However, the court did not laid down a precise limit of the continental shelf) ' Articles 76 to 85}of the
U.N. Convention on the Law of Sea, 1982, contain provisions with regard to continental shelf. The main provisions are
discussed below:

(1) Outer Limit of Continental Shelf ^ Under Art.76, the continental shelf has been defined as comprising, “the
seabed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory the outer edge of the continental margin to a distance of 200 nautical miles (from
the baseline from which the breadth of territorial sea is measured) where the outer edge of continental margin does
not extend upto that distance. This definition incorporates the concept of the continental shelf as highlighted by the
World Court Further, it provides for a uniform continental shelf upto a distance of 200 miles to those coastal States
who have a short continental shelf and does not extend upto the said distance. The 1982 Convention thus clarifies
that continental shelf of a coastal State comprises sea bed and subsoil of the submarine area upto outer edge of
continental margin or to a distance of 200 nautical miles, whichever is more. Further, where a State’s outer edge of
continental margin extends beyond 200 nautical miles, the convention lays down that continental shelf shall not
exceed 350 nautical miles from the baseline from which the breadth of territorial sea is measured or shall not exceed
100 nautical miles from the 2500 metres isobath.

(2) Rights of States: The area of continental shelf cannot be appropriated by the States & therefore, States cannot
exercise sovereignty over this part of the sea. however, they may exercise sovereign rights over it for the purposes of
exploring it and exploiting its natural resources. Thus, the 1982 Convention preserves the sovereign rights given by
the 1958 Convention. But in Art.82, a provision has been made for revenue sharing in respect of exploitation beyond
the 200 nautical miles limit. That is, coastal States are required to make payments or contributions in kind to the
International Sea-bed Authority, in such cases The above right of exploring and exploiting the natural resources are
exclusive sense that if the coastal State does not explore the continental shelf or exploit its resources, no other State
may undertake these activities without its express consent (Art.77)

Art.81 provides that the coastal States shall have the exclusive right to authorise and regulate drilling on the
continental shelf for all purposes, j The above rights of coastal States over the continental shelf do not affect the legal
status of the superjacent waters or the air space above those waters. Jhe exercise of the right of the coastal States
over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights
and freedoms of other States (Art.78). Jims, coastal States are entitled only to construct and operate the necessary
installations within their continental shelves in accordance with these safeguards. Other States have also been given
a few rights over the continental shelf of the coastal States. Thus, all States are entitled to lay submarine cables and
pipelines on the continental shelf. However, the right may be exercised only with the consent of the coastal States

(3) Delimitation of Continental Shelf between two or more States to the delimitation of continental shelf between
adjacent or opposite States, there has been much controversy., The Geneva Convention, 1958 ^adopted the
“equidistance - special circumstances rule Art.6 of it allows " States to determine boundary of their continental shelf
by agreement between them. In the absence of agreement, and unless another boundary line is justified by special
circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest
points of the baselines from which the breadth of territorial sea of each State is measured However, the above rule
proved controversial, particularly because of the imprecise nature of the term “special circumstances.”

Indian Position on Continental Shelf I Under Sec.6 of Indian Maritime Zones Act, 1976, the Indian definition of
continental shelf is substantially the same as under the 1982 U.N. Convention, except that this Act indicates some
illustrative examples of India’s sovereign rights over the continental shelf which include - (i) Rights of exploration,
exploitation, conservation and management of all resources. (ii) Right to construct and maintain artificial islands, off-
shore terminals, etc. (iii) Right to scientific research. (iv) Right to protect marine environment and control marine
pollution.

As to delimitation of continental shelf, Sec. 9 provides that maritime boundaries should not extend beyond the
equidistance line, in the absence of any agreement between parties. India’s maritime agreements with its neighbours
follow the equidistance line as a general principle
Article3 Breadth of the territorial sea

Every State has the right to establish the breadth of its territorial sea up to a limit
not exceeding 12 nautical miles, measured from baselines determined in
accordance with this Convention.

Article4 Outer limit of the territorial sea

The outer limit of the territorial sea is the line every point of which is at a distance
from the nearest point of the baseline equal to the breadth of the territorial sea.

Article5 Normal baseline

Except where otherwise provided in this Convention, the normal baseline for
measuring the breadth of the territorial sea is the low-water line along the coast
as marked on large-scale charts officially recognized by the coastal State.