HOW THE LAW OF THE SEA AFFECTS MARITIME DISPUTES

This article is written by Ritik Ranjan Kesh of NMIMS School of Law, Bangalore, an intern under Legal Vidhiya

ABSTRACT

The Law of the Sea plays a crucial role in affecting maritime disputes in several ways:

The Maritime Laws, particularly the United Nations Convention on the Law of the Sea (UNCLOS), establishes a comprehensive framework for delimiting maritime zones like territorial seas, exclusive economic zones (EEZs), and continental shelves. This framework lays out principles and methods for drawing boundaries between countries, reducing uncertainty and potential conflict over resource-rich areas. [1]

UNCLOS provides mechanisms for peacefully resolving maritime disputes through negotiation, mediation, conciliation, and arbitration. The International Tribunal for the Law of the Sea (ITLOS) serves as a dedicated forum for resolving disputes under the Convention. This promotes stability and avoids escalation of tensions.

It defines the rights and obligations of coastal states and other users of the sea regarding navigation, resource exploitation, environmental protection, and scientific research. This clarity in rights and duties helps prevent misunderstandings and disputes over competing claims.

And as a matter of fact, it also encourages cooperation among states in managing and protecting shared marine resources and the environment. This fosters a sense of shared responsibility and reduces the likelihood of unilateral actions that could trigger disputes.

INTRODUCTION

The Law of the Sea also has limitations in addressing maritime disputes:

• Implementation and Interpretation: UNCLOS is a complex treaty, and its interpretation and implementation can vary among states, leading to disagreements.
• Non-universal Acceptance: Not all countries have ratified UNCLOS, creating challenges in applying its provisions to all maritime disputes.
• Emerging Issues: UNCLOS does not address all emerging challenges like climate change and sea-level rise, which can impact maritime boundaries and resource distribution, leading to new disputes.

Overall, the Law of the Sea, while not without limitations, plays a crucial role in mitigating and resolving maritime disputes by providing a framework for delimitation, promoting peaceful settlement mechanisms, clarifying rights and obligations, and encouraging cooperation.[2]

The effectiveness of the Law of the Sea in resolving maritime disputes depends on the willingness of states to comply with its provisions and engage in good-faith negotiations.

The role of international organizations and regional agreements be important in facilitating dialogue and finding solutions to maritime disputes.

Public awareness and education about the Law of the Sea can help to build support for its principles and promote its peaceful application.

AFFECTING THE MARITIME DISPUTES

The Law of the Sea (specifically, the United Nations Convention on the Law of the Sea, UNCLOS) plays a crucial role in affecting maritime disputes in several ways:

Establishing a Legal Framework

UNCLOS provides a comprehensive legal framework for all maritime activities, including navigation, exploitation of resources, and protection of the marine environment. This framework helps to clarify the rights and obligations of states, reducing ambiguity and uncertainty that could fuel disputes. It provides a set of guidelines for governing various aspects of maritime activities and acting as a common reference point for countries involved in disputes, offering a set of rules and principles to guide their claims and actions.

It also defines maritime zones like territorial sea, exclusive economic zone (EEZ), continental shelf, and high seas, clarifying which state has jurisdiction and sovereign rights over resources in each zone. This helps prevent ambiguity and reduces potential conflict over resource ownership and exploitation.[3]

These zones include:

1. Territorial Sea: Sovereignty extends to 12 nautical miles from the coast, where states exercise full control over resources and activities.
2. Exclusive Economic Zone (EEZ): Extends up to 200 nautical miles from the coast, where states have exclusive rights to exploit resources like fish, oil, and gas.
3. Continental Shelf: Extends beyond the EEZ to the outer edge of the continental margin, where states have exclusive rights to exploit mineral resources on the seabed and subsoil.

Defining these zones helps to clarify which state has jurisdiction over specific areas, preventing disputes over resource rights and activities.

Establishing Dispute Settlement Mechanisms

UNCLOS provides various options for states to peacefully settle maritime disputes, including:

• Negotiation: States are encouraged to resolve disputes directly through negotiation and diplomacy.
• Conciliation: A neutral third party can help the parties reach an agreement.
• Arbitration: A binding decision is made by a tribunal of experts.
• UNCLOS offers various mechanisms for settling maritime disputes peacefully, through negotiation, conciliation, arbitration, or adjudication by the International Tribunal for the Law of the Sea (ITLOS), a permanent court established under UNCLOS to hear disputes between states. This reduces reliance on unilateral actions or force and encourages countries to seek negotiated solutions.
• ITLOS provides a neutral and independent forum for resolving complex legal issues arising from maritime disputes. Its decisions, while not binding in all cases, carry significant weight and can contribute to peaceful resolution of conflicts.

These mechanisms offer alternatives to military confrontation and encourage states to find legal solutions to their disagreements.

UNCLOS encourages cooperation among states in areas like marine scientific research, environmental protection, and conservation of marine resources. This fosters a collaborative environment and reduces the likelihood of disputes arising from unilateral actions that might harm others’ interests.

By establishing common standards and regulations for various activities, UNCLOS promotes responsible use of the ocean and minimizes the risk of accidents and environmental damage, which could otherwise lead to disputes.[4]

Addressing Emerging Issues

UNCLOS provides a platform for states to discuss these issues and develop new legal norms to address them. It is constantly evolving to address new challenges, such as:

• Climate change and sea level rise: Impact on maritime boundaries and resource allocation.
• Marine pollution: Need for international cooperation to protect the marine environment.
• Exploitation of resources in the deep seabed: Ensuring equitable sharing of benefits and protecting the fragile ecosystem.
• Enforcement can be challenging: The Convention lacks a central enforcement mechanism, and states may not always comply with its provisions, leading to ongoing disputes and violations.

Hence UNCLOS is not at all static and can be amended to address new challenges arising from developments like climate change, technological advancements, and the discovery of new resources. This adaptability allows the law to remain relevant and continue to guide the resolution of future maritime disputes. [5]

Limitations

While UNCLOS plays a significant role in mitigating maritime disputes, it’s not a perfect solution. Some limitations include:

• Non-universality: Not all states have ratified UNCLOS, creating legal gaps and challenges in enforcement.
• Interpretation and Compliance: Disputes can arise regarding the interpretation of specific provisions and the level of compliance by states.
• Limited Enforcement Mechanisms: UNCLOS lacks strong enforcement mechanisms, making it difficult to hold states accountable for violations.

Despite these limitations, the Law of the Sea remains a vital tool for managing maritime disputes and promoting a peaceful and sustainable use of the oceans. Its influence is undeniable, and its continued application and development are crucial for ensuring a stable and cooperative maritime order.[6]

Thus, The Law of the Sea plays a crucial role in mitigating maritime disputes by providing a legal framework, defining maritime zones, establishing dispute resolution mechanisms, and addressing emerging issues. However, its limitations and challenges highlight the need for continued efforts to strengthen its effectiveness and ensure peaceful resolution of maritime disagreements.

International seabed mining

International seabed mining involves extracting mineral resources including extraction of valuable metals from the ocean floor, primarily in areas beyond national jurisdiction. While promising for meeting global demand, it poses environmental concerns due to potential habitat destruction and disturbance to marine ecosystems. The primary framework for legal regulations on international seabed mining is established by the United Nations Convention on the Law of the Sea (UNCLOS). This treaty establishes the International Seabed Authority (ISA) as the governing body responsible for regulating all mineral-related activities in the international seabed area, known as “the Area”, aiming to balance resource exploitation with conservation.[7]

UNCLOS recognizes the International Seabed Authority (ISA) as the authority responsible for regulating and controlling all mineral-related activities in the international seabed area. The seabed beyond national jurisdiction is considered the “common heritage of mankind,” and the ISA oversees exploration and exploitation of its resources to ensure they are used for the benefit of humankind as a whole.

The ISA issues exploration and exploitation licenses to countries, entities, or individuals interested in mining activities in the international seabed area. These licenses come with specific terms, regulations, and environmental guidelines to ensure sustainable and responsible mining practices.

It also emphasizes the protection of the marine environment, requiring mining activities to minimize environmental impacts and conduct environmental impact assessments. It promotes the principle of the “precautionary approach,” meaning that if there is a lack of scientific certainty regarding potential environmental harm, measures should still be taken to prevent damage to the marine ecosystem.

Furthermore, UNCLOS establishes a revenue-sharing system to ensure that benefits from seabed mining activities are distributed equitably among all countries, including developing nations that may not have the technological or financial capabilities to engage in deep-sea mining.[8]

Impact in Detail

The Law of the Sea, primarily governed by the United Nations Convention on the Law of the Sea (UNCLOS), plays a critical role in regulating maritime disputes. It establishes the legal framework for various aspects of maritime activities, including territorial waters, exclusive economic zones (EEZs), continental shelves, navigation rights, environmental protection, and more.[9] Here’s how it impacts maritime disputes:

Territorial Disputes:

1. Territorial Waters: UNCLOS defines territorial waters as extending up to 12 nautical miles from a country’s coastline. Disputes often arise regarding the delimitation of these waters between neighbouring countries.
2. Exclusive Economic Zones (EEZs): Countries have rights over resources within 200 nautical miles of their coastlines. Disputes can arise over the delineation of these zones, especially when neighbouring countries’ coastlines are close.

Maritime Boundaries:

1. Continental Shelf: UNCLOS establishes guidelines for determining the outer limits of the continental shelf, which can extend beyond 200 nautical miles from a country’s coastline. Disputes often involve overlapping claims to these extended continental shelves.
2. Delimitation of Boundaries: UNCLOS provides principles for determining maritime boundaries between adjacent or opposite states. Disputes frequently arise due to conflicting interpretations or historical claims.

Navigation Rights:

1. Right of Innocent Passage: Ships have the right of innocent passage through territorial waters, subject to certain conditions. Disputes may arise over what constitutes innocent passage.
2. Freedom of Navigation: UNCLOS guarantees freedom of navigation on the high seas. Disputes can occur when countries impose restrictions or regulations that hinder this freedom.

Environmental Protection:

1. Marine Pollution: UNCLOS imposes obligations to prevent and control pollution in the marine environment. Disputes arise concerning responsibility for pollution incidents and compliance with environmental regulations.
2. Conservation of Marine Resources: Disputes can emerge over fishing rights, conservation of marine species, and exploitation of natural resources in shared maritime zones.

CONCLUSION

Dispute Resolution Mechanisms are provided by UNCLOS to resolve the ongoing conflicts among countries. UNCLOS provides a legal framework for resolving disputes peacefully through negotiation, mediation, or international arbitration.

The International Tribunal for the Law of the Sea (ITLOS) and the Permanent Court of Arbitration (PCA) are institutions that help settle such disputes.[10]

In summary, the Law of the Sea, as enshrined in UNCLOS, sets the legal parameters for maritime activities and offers mechanisms for resolving conflicts. However, despite its comprehensive framework, disputes often persist due to differing interpretations, historical claims, and conflicting national interests.

REFERENCES

• ASEAN [Association of Southeast Asian Nations] and PRC [People’s Republic of China]. 2002. “2002 Declaration on the Conduct of Parties in the South China Sea.” Accessed February 12, 2021. https://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20on%20the%20Conduct%20of%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf
• Brunei’s Ministry of Defence. 2011. “Defence White Paper: Defending the Nation’s Sovereignty. Expanding Roles in Wider Horizons.” Accessed July 19, 2021. https://www.mindef.gov.bn/Defence%20White%20Paper/DWP%202011.pdf
• Camba, Alvin. 2018. “Assessing Duterte’s China Investment Drive.” Accessed February 12, 2021. https://www.lowyinstitute.org/the-interpreter/assessing-dutertes-china-investment-drive
• Churchill, Robin. 2017. “The General Dispute Settlement System of the UN Convention of the Law of the Sea: Overview, Context and Use.” Ocean Development and International Law 48, no. 1: 216–238.
• Greer, Adam. 2016. “The South China Sea is Really a Fishery Dispute.” The Diplomat, July 20, 2016. https://thediplomat.com/2016/07/the-south-china-sea-is-really-a-fishery-dispute
• GRID-Arendal. 2014. “Continental Shelf Programme: Background to UNCLOS.” Accessed February 11, 2021. http://www.continentalshelf.org/about/1143.aspx
• IISLL [International Institute for Law of the Sea Studies]. 2021. International Law in the South China Sea. Accessed February 28, 2022. http://iilss.net/international-law-in-the-south-china-sea
• The Guardian. 2016. “Philippines to ‘Set Aside’ South China Sea Tribunal Ruling to Avoid Imposing on Beijing.” December 17, 2016. https://www.theguardian.com/world/2016/dec/17/philippines-to-set-aside-south-china-sea-tribunal-ruling-to-avoid-imposing-on-beijing
• 1998. “Oceans and Law of the Sea – The United Nations Convention on the Law of the Sea – A Historical Perspective.” Accessed February 11, 2021. https://www.un.org/Depts/los/convention_agreements/convention_historical_perspective.htm#Historical%20Perspective.
• 2020. “Chronological Lists of Ratifications of, Accessions and Successions to the Convention and Related Agreements.” Accessed February 11, 2021. https://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm
• 2021. “United Nations – Treaty Collection – Law of the Sea.” Accessed February 11, 2021. https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec
• Welch, David A. 2016. The Hague’s South China Sea Ruling: Implications for East Asian Security. Accessed February 11, 2022. https://www.asiapacific.ca/canada-asia-agenda/hagues-south-china-sea-ruling-implications-east-asian

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[1] https://www.sciencedirect.com/topics/earth-and-planetary-sciences/law-of-the-sea

[2] Matthew Carvalho, Jeremy Mathis, B.A. Hamzah, Vivian Louis Forbes, Cinnamon Piñon Carlarne, Juan Luis Manfredi, Chapter 21 (2023), Pages 643-685, https://doi.org/10.1016/B978-0-323-95227-9.00023-3.

(https://www.sciencedirect.com/science/article/pii/B9780323952279000233)

[3] P. Hoagland, J. Jacoby, M.E. Schumacher, Academic Press, (2001) Pages 432-443, https://doi.org/10.1016/B978-012374473-9.00415-X. (https://www.sciencedirect.com/science/article/pii/B978012374473900415X)

[4] Britannica, T. Editors of Encyclopaedia. “territorial waters.” Encyclopedia Britannica, December 9, 2023. https://www.britannica.com/topic/territorial-waters.

[5] https://www.e-ir.info/2022/06/23/the-role-of-united-nations-convention-on-the-laws-of-the-sea-in-the-south-china-sea-disputes/

[6] Hsiao, A. H. (2018). “Unilateral Actions and the Rule of Law in Maritime Boundary Disputes”. In Asian Yearbook of International Law. Leiden, The Netherlands: Brill | Nijhoff. https://doi.org/10.1163/9789004379633_012

[7] Boyle, Alan E. “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction.” The International and Comparative Law Quarterly 46, no. 1 (1997): 37–54. http://www.jstor.org/stable/760513.

[8] Porter. Hoagland, J. Jacoby, Mary. Schumacher, Christine. Burns, Encyclopedia of Ocean Sciences (Third Edition), Academic Press, (2019), Pages 526-537, https://doi.org/10.1016/B978-0-12-409548-9.11344-2. (https://www.sciencedirect.com/science/article/pii/B9780124095489113442)

[9] Yves Boquet, Yves Boquet, South China Sea or West Philippine Sea? The Philippine Archipelago, 10.1007/978-3-319-51926-5_20, (711-736), (2017). https://onlinelibrary.wiley.com/doi/10.1111/aspp.12116

[10] Porter. Hoagland, J. Jacoby, Mary. Schumacher, Christine. Burns, Encyclopedia of Ocean Sciences (Third Edition), Academic Press, (2019), Pages 526-537, https://doi.org/10.1016/B978-0-12-409548-9.11344-2. (https://www.sciencedirect.com/science/article/pii/B9780124095489113442)

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