The International Law Of The Sea And Indian Maritime Legislation

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CHAPTER 27

THE INTERNATIONAL LAW OF THE SEA  AND INDIAN MARITIME LEGISLATION

DEVELOPMENTS TILL 1965

Over the centuries the international law of the sea had come to be based on the basic principle of "freedom of the seas". Beyond the narrow coastal strip of territorial waters, the seas could be freely used by all nations for fishing and for navigation. Coastal states used to be content with exclusive rights in their narrow belt of territorial waters.

The discovery of petroleum and natural gas in the shallow waters of the continental shelf led the United States to issue the Truman Proclamation in 1945, which claimed sovereign rights over the resources of the continental shelf adjacent to its coast. Around the same time, coastal states found that the fishing areas near their coasts were being poached by larger and better equipped fishing ships of distant foreign states. Both these developments, combined with the emergence of newly independent states after the decolonisation of Asia and Africe, led to a spate of unilateral claims by the coastal states to extend national jurisdiction over large adjacent sea areas to protect their fishery resources.

On attaining independence in 1947, India had been content to proclaim the traditional territorial sea of three miles. In view of the above developments, India issued four presidential notifications to safeguard its interests:

(a) On 30 August 1955, India claimed full and exclusive sovereign rights over the seabed and subsoil of the continental shelf adjoining the coast but beyond territorial waters. Neither the depth nor the distance from the coastline was indicated.

(b) On 22 March 1956, India claimed Territorial Waters of six miles from appropriate baselines.

(c) On 29 November 1956, India claimed a Conservation Zone for fisheries up to a distance of one hundered miles from the outer limit of territorial waters.

(d) On 3 December 1956, India claimed a Contiguous Zone.

Several other developments were also taking place. The USA and the Soviet Union were unable to agree on the width of territorial waters - the Soviet Union wanted twelve miles whilst the USA wanted only three miles. Technological developments in the industrialised West began to make it possible to extract oil and gas from the seabed. The newly independent nations of Asia and Africa began to feel that the International Law of the Sea would be exploited to their disadvantage. To sort out all these matters, the first United Nations Conference on the Law of the Sea (UNCLOS-1) was convened in 1958.

UNCLOS 1 - 1958

UNCLOS 1 was able to codify the traditional law. It adopted what came to be known as the Geneva Conventions on the Law of the Sea. The four Conventions were:-

  • the freedom of the seas as long conveived.
  • the sovereignty of coastal states in the territorial sea.
  • the ancillary physical, custons, sanitary and immigration rights of coastal states in a Contiguous Zone.

The acceptance by UNCLOS 1 of the Continental Shelf convention enabled the countries bordering the North Sea to divide the sea area for extracting oil and gas.

The UNCLOS 1 participants remained divided on several issues:

  • The rights of coalitions of coastal states, land locked states and archipelagic states.
  • Certain states contested the rights of passage through straits used for international navigation like the Straits of Gibraltar, Hormuz and Malacca.
  • Land based mineral producers tried to carve out for themselves as much as they could of the newly found seabed mineral resources.

UNCLOS 1 completely failed to agree on:-

  • The precise width of the Territorial Sea (three miles or twelve miles) and the extent of the Exclusive Fisheries Zone.
  • The prior authorisation and/or notification of the passage of foreign warships through the territorial sea of a coastal state.

The Second Conference, UNCLOS 2, was therefore convened in 1960 to resolve these issues.

UNCLOS 2 - 1960.

UNCLOS-2 attempted to extend the jurisdiction of coastal states over territorial waters to six miles, with an additional six miles as an Exclusive Fishing Zone. This failed to gain the required two thirds majority for its acceptance.

After UNCLOS 2 failed to achieve agreement on the width of the territorial sea, many countries unilaterally extended their offshore jurisdiction. The South American countries reaffirmed their earlier claim of their territorial waters extending two hundred miles from the coast. African states like Nigeria, Congo, Mauritus and Ghana also extended their territorial sea to distances much beyond 12 miles.

Passage of Warships Through the Territorial Sea.

At UNCLOS 1, India has proposed that the passage of foreign warships through the territorial sea of a coastal state should be subject to prior authoritisation and notification to the coastal state. As this requirement was not accepted and therefore not included in the 1958 conventions on the Territorial Sea and the Contiguous Zone, India declined to retify all four Geneva Conventions. In subsequent years, India resiled from this position. As a growing maritime nation interested in the freedom of navigation both for itself and the international community, India sought only prior notification for the innocent passage of foreign warships through territorial waters.

DEVELOPMENTS AFTER 1965

India's Extension of territorial Waters.

On 12 September, 1967, India extended its territorial waters to twelve miles. This was largely a reaction to Pakistan's extension of her territorial waters from three to twelve miles, rather than an act of maritime policy.

The Seabed Committee.

During the 1960s political, technological, exonomic and naval developments began to change the situation. Advances in seabed exploitation technology made it possible to exploit the seabed much beyond a depth of two hundred metres, thereby rendering the 1958 Conventions outmoded. The deployment of submarine launched ballistic missiles and worldwide apprehensions of a competitive scramble to achieve predominant control over the seabed led the United Nations to discuss the need to evolve means for the peaceful use of the oceans. In 1968, the UN General Assembly constituted a 42 member "Seabed Committee" on the peaceful use of the seabed.

In December 1970, the General Assembly adopted the "Declaration of Principles" governing the Seabed, the ocean floor and the subsoil thereof, beyond the limits of national jurisdiction. The Declaration stated that these areas and their resources are the common heritage of mankind and shall be subject to an international regime as established by an international treaty.

Seabed Mining.

India's interest in the mining of polymetalic nodules from the seabed derived from its long term strategy for metals like nickel, cobalt, copper and manganese. In the early 1970, the Indian Government had initiated a programme of scientific investigation and evaluation of the manganese nodule resources in the Indian Ocean.

Offshore Oil and Gas.

By the early 1970's, India had discovered oil and gas in Bombay High and promising fields were being forecast in the Godavari, Krishna and Palk Bay basins, as also gas in the Andaman Offshore.

With a view to establish and equitable international regime for the exploitation of seabed resources, the UN General Assembly convened the third conference, UNCLOS 3 in 1973.

UNCLOS 3 - 1973 TO 1982.

It took UNCLOS 3 nine years of discussions to adopt the United Nations Convention on the Law of the Sea on 30 April 1982. Thereafter this convention took twelve years to formally come into force on 16 November 1984.

UNCLOS 3 aimed to define an agreed set of rules to govern the use of the seas which would strike a fair balance between:

(a) those who considered that a coastal state should have no right whatsoever over the living resources of the seas beyond a territorial sea of twelve miles and

(b) others who maintained that a coastal state should have full or limited sovereignty over the sea and its resources out to an Exclusive Exonomic Zone of two hundred nautical miles.

The acceptance of this concept of the Exclusive Economic Zone (EEZ) was a landmark contribution of UNCLOS 3.

At UNCLOS 3, India's stand at was that as a developing country centrally located in the Indian Ocean, with a coastline of over 64000 kilometers, its basic national interests were:-

(a) To obtain assurance of smooth and free navigation though traditionally used waters and straits used for international nabigation.

(b) To achieve archipelagic status for the Andaman and Nicobar island group and the Lakshadweep island group which between them, comprised over 1280 islands and islets.

(c) To protect essential strategic and security interests in the waters around its coast.

(d) To secure the free mobility of naval war ships.

(e) To preserve the marine environment in the sea areas adjacent to its coast, because the channels of navigation passed near its long coastline.

(f) To regulate within its EEZ, the conduct of marine scientific research by foreign research agencies.

India advocated from the baselines, a territorial sea of twelve miles, an EEZ of two hundred miles and a continental shelf to the outer edge of the geological continental margin. India also made specific proposals on the requirement of prior notification for warships passing through the territorial sea, enlargement of safety zones around offshore oil rigs, designation of special areas for the protection of the resources located therein (as for example the coral lagoons in the Lakshadweep where tankers could run aground) and several other proposals.

The outcome of UNCLOS 3 - The 1982 Convention on the Law of the Sea.

The 1982 Convention on the Law of the Sea met most of India's interests. It adopted:

  • Twelve miles as the uniform limit for the width of the territorial sea.
  • a two hundred miles EEZ, within which the coastal state exercises sovereign rights and jurisdiction for certain specified economic activities.
  • a Continental Shelf extending to the outer edge of the continental margin, to be delimited with reference to either three hundred and fifty miles from the baselines of territorial waters or one hundred miles from the 2500 - meter isobath.
  • regimes for the abatement and control of marine pollution, for marine scientific research, for the international seabed area and for unimpeded transit passage through straits used for international navigation.
  • The 1982 Convention included India as one of the four states named as "pioneer investor' for seabed mining. On 17 August 1987, India became the first state to be so registered, after having fulfilled the criteria stipulated in the Convention.

There were several areas where India's stand was not accepted. The major ones were:

(a) Passage of Warships Through the Territorial Sea.

There was vehement opposition from the USA and the Soviet Union to prior notification before warships transited through territorial waters, on the grounds that it would seriously jeopardise their strategic and security interests. There is therefore no provision in the 1982 UN Convention on the Law of the Sea requiring prior notification or authorisation for the passage of foreign warships through the territorial waters of a coastal state. But by 1977, Pakistan, Bangladesh, Sri Lanka and Burma (Myanmar) had all unilaterally promulgated that prior authorisation and notification was required for the passage of foreign warships through their respective territorial seas.

India's Maritime Zones Act 1976 also requires foreign warships to give prior notification for passing through India's territorial waters and enjoins all submarines and other underwater vehicles to navigate on the surface and show their flag while passing through these waters.

(b) Archipelagic Status for the Andaman and Nicobar Islands.

The Convention granted the status of an archipelago only to those groups of islands that were political entities by themselves as for example Indonesia, the Philippines and the Maldives. This was because of fear of interference with the freedom of navigation through archipelagic waters that might be created if the off-lying islands of continental coastal states were to be granted archipelagic status. For example, the distance between the Andaman group and the Nicobar group of islands is 76 miles. If archipelagic status had been granted to these groups of islands, India would have had full regulatory control over the navigation of ships passing through the Ten Degree Channel, which would then have been part of India's archipelagic waters, and therefore subject to the restricted regimes of archipelagic sealanes passage.

(c) Enlarged Safety Zones for Offshore Installations.

The UNCLOS 1 Continental Shelf Convention had provided for a safety zone of 500 meters around artificial islands, installations or structures on the continental shelf. India's view at UNCLOS 3 was that this zone was inadequate, considering the time that a huge supertanker takes to come to a stop. India therefore advocated Enlarged Safely Zones. The suggestion did not receive adequate support. A provision was howver incorporated in the 1982 Convention that if authorised by generally accepted international standards or as recommended by the competent international organisation, then a coastal state may promulgate safely zones larger then 500 metres.

India's Gains After the 1982 UN Convention of the Law of the Sea.

Apart from the benefits of an agreed Law of the Sea, India gained in two significant areas:- (a) India's EEZ became the twelfth largest in the world. The extension of the EEZ to 350 miles or 100 miles beyond the 2500-metre isobath added 2 million square kilometers to India's jurisdiction.

(b) Pursuant to the `pioneer investor' status, the International Seabed Authority allotted to India a 150,000 square kilometer mine site in the central Indian Ocean for the seabed mining of polymetalic nodules. The richest area at this site has a density of 21 kilograms of nodules per square metre.

The Genesis of the Coast Guard.

While UNCLOS 3 was still in the early phase of discussing the EEZ and well before India had enacted the Maritime Zones Act of 1976, discussions had commenced in India on how the EEZ was going to be sageguarded. In 1974, Naval Headquarters had suggested to the Government to have an armed force on the lines of the US Coast Guard and stressed the importance of inter-ministerial coordination while selecting Coast Guard vessels, recruiting experienced personnel, setting up communication netweks, using naval repair facilities, indigenisation etc. Such integrated Navy-Coast Guard development would avoid duplication and economise effort.

On 25 August 1976 India passed the Maritime Zones Act which claimed a 12 mile territorial sea, a 24 mile contiguous zone, a 200 mile EEZ and a continental shelf up to 200 miles or the outer edge of the continental margin, whichever is greater.

Soon after this Act, a committee was set up to consider the type of force that should be created to enforce compliance with its provisions. Three options emerged:

(a) To entrust this responsibility to the marine wing of the Ministry of Finance, which already had a number Cental Board of Revenue (CBR) anti smuggling vessels. This option was not pursued as the functions were too onerous.

(b) To set up a separate Coastal Command, as a part of the Navy, to oversee these functions. This option was seriously considered since it would avoid the expenditure of raising and maintaining a separate armed force. the Ministry of External Affairs however felt that patrolling of the EEZ and protection of national assets was a peace time role for which defence assets should not be used.

(c) To set up a separate armed force of the Union, along the lines of the US Coast Guard. This option was finally chosen, as it avoided the Navy being distracted from its primary role of preparing for hostilities.

An interim Coast Guard was constituted on 1 February 1977, which operated under the aegis of the Navy until 18 August 1978. A permanent Coast Guard was constituted as an armed force of the Union on 19 August 1978. The Coast Guard Act 1978 requires the Coast Guard to:-

(a) Ensure the safety and protection of offshore terminals, installations and other structures and devices.

(b) Provide protection to fishermen, including assisting them when in distress at sea.

(c) Protect the marine environment by preventing and controlling marine polution.

(d) Assist the customs in anti smuggling activities when patrolling the seas beyond Indian customs waters.

(e) Enforce the Maritime Zones Act of 1976.

(f) Take measures for the safety of life and property at sea.

(g) Collect scientific data.

The Coast Guard thus became the principal agency for enforcing all national legislation in the Maritime Zones of India, working in close liaison with other Government authorities to avoid duplication of effort.

During hostilities, India's Coast Guard would function under the overall operational command of the Navy as is done by other Coast Guards of the world.

MARITIME BOUNDARIES

India has maritime boundaries with five opposite states (Sri Lanka, the Maldives, Myanmar, Indonesia, Thiland) and two adjacent States (Pakistan and Bangladesh).

Maritime boundary agreements were amicably concluded with:-

(a) Sri Lanka in 1974 and 1976.

(b) Indonesia in 1974.

(c) The Maldives in 1976.

(d) Thailand and Indonesia, on the trijunction point, in 1977.

(e) Myanmar in 1982.

Maritime boundary agreements with the adjacent states of Pakistan and Bangladesh have yet to be concluded. Meetings have been held with Bangladesh since 1976 and with Pakistan since 1986.