Enforceability of UNCLOS in international Maritime Law

Authored by Nimisha Shrivastava and Toshika Soni

ENFORCEMENT OF UNCLOS, 1982

United Nations Convention on laws of Sea (hereinafter UNCLOS), 1982 is a convention which not only seeks answers to the ethical question of ‘Common Heritage of mankind’ but also addresses practical questions related to marine security and legal rights and duties of different coastal states in their marine territory. The present article deals with various provisions and debates surrounding these issues at length.

Maritime security regime in UNCLOS

With the manifold increase in maritime activities around the world, several law enforcement powers are necessary to enable countries to tackle maritime security issues. In light of the same, regulation of activities at sea and ocean management becomes important. Ergo, UNCLOS is not the only legal instrument with regard to the same, but it is the most pertinent one and provides a broad foundation for a uniform ocean governance. The convention provides a framework to divide marine areas into various zones. In the maritime security paradigm, the ability of a state to enforce laws varies due to existence of different duties and rights in different maritime zones. UNCLOS splits marine areas into different zones, each having a different legal status. These are –

  • Internal Waters

Internal waters of a state include “waters on the landward side of the baseline of the territorial sea[1]” and the state exercises sovereignty on the same. Right of such coastal states to control and to prescribe entry of ships to ports in internal waters flows directly from this sovereignty. Due to such rights, the states get law enforcement powers against maritime security issues in the International maritime security regime.

  • Territorial sea

UNCLOS defines territorial sea as water belt of a coastal state extending upto 12 nautical miles at most[2]. A coastal state exercises sovereignty over territorial sea belonging to the state which extends to subsoil, bed and the airspace over it[3]. A state can enact and enforce legislation in this maritime zone, however, this right is subject to certain restrictions under UNCLOS[4]. Some of these restrictions include non-discrimination against vessels of any particular state, right to innocent passage etc. However, the right of coastal states to enforce legislations in this maritime zone has given rise to debates surrounding it.

  • Contiguous Zones

This is anintermediary zone between the high seas and the territorial sea. Contiguous zone extends the law enforcement jurisdiction of a coastal state to a maximum of 24 nautical miles and enables the state to punish or prevent violations of fiscal, immigration, customs, or sanitary legislation.UNCLOS refers to such fiscal, immigration, customs, or sanitary laws[5] which may be apposite to address or tackle any crime related to people trafficking, drugs or even terrorism. In the context of marine security, this certainly includes monitoring activities which can result in import of weapons or armed violence in the concerned coastal state. Article 33 of UNCLOS can be divided into two limbs, the first limb being preventive or anticipatory in nature and is applicable on inward-bound vessels (those entering the state) while the second limb is applicable on outward-bound vessels (those leaving the territory of the state) and can be said to be analogous to ‘doctrine of hot pursuit’. In light of the same, the coastal state can exercise these powers in a contiguous zone for prevention of infringement of immigration, customs, fiscal or sanitary laws.

  • Exclusive Economic Zone

This is one of the most important and complex parts of UNCLOS and provides for assertion of economic exploitation and exploration related rights of the coastal state. An exclusive economic zone is another intermediary zone which lies between the high seas and the territorial waters of a coastal state and stretches to a maximum of 200 nautical miles. In these areas, the coastal state exercises sovereign rights for purposes like exploitation, conservation, management and exploration of natural resources present.[6] Coastal states also exercise jurisdiction in EEZs with respect to issues related to installations and structures, preservation and protection of marine environment, maritime scientific research, establishment and use of artificial islands in these areas[7]. In addition to this, the convention strikes down a delicate balance between navigation rights and enforcement of laws related to pollution and fishing by coastal states by putting some restrictions on the latter[8]. To balance navigational rights and sovereign rights of the coastal states, the convention also chalks down a provision which enables other states to make internationally lawful uses of EEZs of the coastal states (which includes laying of submarine cables, pipelines etc.). In the light of maritime security paradigm, the coastal state can take actions to prevent any unlawful economic uses of its EEZ and hence, the rights in this zone can be said to be limited to economic aspects.

  • High Seas

These are the marine areas which lie beyond 200 nautical miles from a coastal state and are based on the principle of ‘mare liberum’ or the freedom of the seas. As the principle suggests, these areas are available to all the countries based on the principle of equality. No state can have exclusive claims on the high seas[9]. In these marine units, a vessel sailing under the flag of a nation is subject to exclusive jurisdiction of that particular state[10]The main purpose of such an arrangement is to maintain peace and to ensure equal rights to all the states having small or large coastlines. In the SS Lotus case, it was reiterated that the vessels in high seas are subject to no one except that to the state under whose flag they sail.[11]

While the convention provides for various rights and duties of coastal states in these above-discussed zones, it also forms basis for a concept called ‘common heritage of mankind which has been a debatable issue with regard to maritime security and its enforceability.

Regime For Part XI of UNCLOS 1982

Before maritime law became subject to treaty law, it was mainly regulated by customary practices and usages. Codification attempts in this arena have been made by The Hague Conference 1930 and the Geneva Conventions of 1958.[12] The United Nations Convention on the Law of the Sea 1982 has mostly been a step towards the codification of various usages but has also been a work of great innovation and novel ideas in the field of international maritime law.

One of the new creations of this Convention is the regime of ‘Common Heritage of Mankind’.[13] As per the Convention, the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction [“the Area”] and the resources of this region are the Common Heritage of Mankind.[14] The Area and its resources are beyond sovereign exercise and shall not be appropriated by any State unless by due procedure of the designated authority, that is, the International Seabed Authority.[15]

The problem exists wherein states reject or fail to ratify this regime. This is so because the regime of Common Heritage of Mankind requires universality in acceptance. However, states as majorly involved in the maritime legal arena as the United States have failed to ratify this Convention based on their hostility towards this regime.[16] They are of the opinion that this is an economic detriment, considering the Area’s resources were previously under the regime of Freedom of Exploration as the continental shelf below the high seas was freely navigable. While Freedom of Navigation was kept intact under UNCLOS 1982, Freedom of Exploration of the Area was transformed into an equitable and structuralized arrangement.[17]

These states have echoed their resentment towards this regime by revoking the Convention altogether as the UNCLOS during negotiations was finalized to be a ‘package deal’. In fact, the Convention expressly prohibits reservations and hence, states can’t modify or exclude the legal effect of certain provisions of the Convention in their application to them.[18] The United States, in specific, has criticized this regime but has tried to avail the benefits of the Freedom of Navigation regime. The United States strongly guards and wishes to secure its navigational interests, as we have seen in the South China Sea region. Maritime dominance is one of the thresholds of US defence and hence, US hegemony.

The principle of res inter aliosactagoverns international treaty regimes. This ensures that a treaty does not create either obligations or rights for a third state without its consent, a hallmark of Positivist school of thought and growing importance of state sovereignty. This has also been enshrined in the Vienna Convention on Law of Treaties.[19] Applying this principle, the Common Heritage of Mankind regime cannot be applied to non-parties to the UNCLOS 1982. This raises some serious questions. Can the United States continue to exploit resources in the Area? Would the UNCLOS be applicable to it? Can other states choose to opt out of the equitable sharing mechanism by revoking the UNCLOS now? What real incentive lies for parties to the UNCLOS who have given up their resource exploitation rights in the Area and pay hefty fees to the Seabed Authority now?

This issue gets even more complicated when we analyse Article 137 of UNCLOS that binds the state parties to not recognize any mineral acquisition activities in the Area by any other state. Now, if the US conducts mineral exploitation in the Area, can that be challenged by these states? What enforcement mechanism lies for such disputes? Can the US as a non-party to UNCLOS still represent itself in front of the International Tribunal on the Law of the Sea?

Some have answered this question saying that non-parties are now bound by the Common Heritage regime as Article 38 of the Vienna Convention on Law of Treaties says that treaty norms that are customary in nature can bind third parties. Scholars now say that this regime has become customary.[20] This is due to the widespread ratification of this Convention by numerous states.

But the debate isn’t that simple. Does the widespread US resentment to the regime since its very inception exclude its application to this state? This can be the case referring to the doctrine of Persistent Objector laid down in Fisheries case.[21]

Conclusion

In the vibrant world of marine trade and interactions, framework with regard to maritime security becomes essential to protect coastal states and vessels from any third-party interference and UNCLOS provides for the same. The convention, on one hand, tries to strike a balance between navigation rights of other states and rights of coastal states under whose jurisdiction a marine unit lies, while on the other hand, it also enables all the countries to get equal access to mineral and other resources. However, there have been instances where the existing legal regime was inadequate to meet threats of terrorism and this has been a matter of heightening concern. One issue with the convention is that it focuses on flag state authority while disregarding the fact that not all states comply to the international standards of maritime security and any refusal or failure to give bilateral ( or multilateral) assistance by such states leaves inadequate or even non-existent alternatives to others seeking such maritime security measures.Conclusively, we can say that the UNCLOS is an innovative Convention that comes up with novel ideas of Maritime regulation in the international sphere. However, given the nature of sovereign nations, it is difficult to enforce these revolutionary arrangements against states that don’t agree to their establishment.

About the Authors

Nimisha Shrivastava is currently a 4th year law student at National Law University Odisha. she has a keen interest in international aspects of operational Marine Law and has been associated with the centre for Maritime Law for the past two years.

Toshika Soni is currently pursuing her 3rd semester of B.A.LL.B. (Hons.) at National Law University Odisha. She has extensive research and negotiation experience in International Maritime Law. she’s currently associated with the centre for Maritime Law at NLUO.


[1]Article 8, UNCLOS 1982.

[2]Article 3, UNCLOS 1982.

[3]Article 2, UNCLOS 1982.

[4] Article 24(1)(b), UNCLOS 1982.

[5]Article 33, UNCLOS 1982.

[6] Article 56(1)(a), UNCLOS 1982.

[7]Article 213,214,216 and 222, UNCLOS 1982.

[8]Article 73, UNCLOS 1982.

[9]Article 297, UNCLOS 1982.

[10]Article 298, UNCLOS 1982.

[11] SS Lotus Case (France v Turkey) [1927] PCIJ SerA No 10.

[12]516 UNTS 205; 499 UNTS 311; 450 UNTS 11.

[13] Part XI, UNCLOS 1982.

[14]Article 136, UNCLOS 1982.

[15]Article 137, UNCLOS 1982.

[16]UNCLOS,UnitedNationsTreatyOrganisation<https://treaties.un.org/Pages/showDetails.aspx?objid=0800000280043ad5&gt; accessed 3 August 2019.

[17]Article 87 (1), UNCLOS 1982.

[18]Article 309, UNCLOS 1982; Article 19, Vienna Convention on Law of Treaties 1969.

[19]Article 34, Vienna Convention on Law of Treaties.

[20] Sarah Ashfaw, ‘Something for Everyone: Why the United States should Ratify the Law of the Sea Treaty’, Journal of Transnational Law and Policy, 19 (2) 357-399 (2010).

[21]Anglo-Norwegian FisheriesCase, ICJ Reports 1951, p 131.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Create your website at WordPress.com
Get started
%d bloggers like this:
search previous next tag category expand menu location phone mail time cart zoom edit close