Presentation of Dissertation : Law of the Sea.

शं नो वरणः नो वरणः CRITICAL AL ANALYSIS ANALYSIS A CRITIC OF THE LAW OF THE SEA A PRESENTATION Submitted To:

Submitted By:

Dr. Dr. Prakash.C.Jha Prakash.C .Jha

Abhinav Gupta

Research Supervisor

i.B.A.LL.B(Hons.) i.B.A.LL.B (Hons.) 10TH SEMESTER

AREA OF INTEREST

PUBLIC INTERNATIONAL LAW

DISSERTATION TITLE

शं नो वरणः नो  वरणः A CRITICAL ANALYSIS ANALYSIS OF LAW OF THE SEA

INTRODUCTION: ROOTS OF TITLE •

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The long title of the dissertation is a conjunct of two separate things that can be sub-divided into two roots (i.e. Root 1 and Root 2). Root 1: “ शं नो वरणः” (a sanskrit prayer from Taitirriya Upansihad) (Motto of Indian Navy ). Root 2: Critical Analysis of the Law of the Sea. (a critique).

OBJECTIVES OF DISSERTATION

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To ascertain the existing international law on the sea. To identify the ‘gaps’  and ‘ambiguities’  in the law relating to sea. To critically examine consistency, coherence and stability of the law relating to the sea and oceans . To enquire whether the law on the sea is serving the needs of the world of nations, big or small.

OBJECTIVES OF DISSERTATION

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To make suggestions for improvements in the law of the sea. To predict prospective future trends for the law relating to sea.

SCHEME OF DISSERTATION

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Keeping the other preliminaries at bay, the dissertation is subdivided into > 9 chapters, > 2 annexes.

STATEMENT OF PROBLEMS •

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Examine the genesis and evolution of the existing international law on the sea. What was the need to codify the international law on the seas and oceans of the world ? What are those codified laws that govern the sea and ocean regime ? and what is their applicability?

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Principally, Who and how are these laws administered and enforced ?

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Explain the institutional and judicial development of the Law of the Sea ?

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What are the current trends on settlement of sea related disputes ? How can it be amicably resolved without the use of force ? Explain prospective suggestions for amendment in the Law of the sea and the Future of the law of the sea.

HYPOTHESIS •

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It is hypothesised that the decision of the UNGA in 1970 to convene a conference to negotiate a new international framework on law of the sea may be a beginning to a strong legal regime on the seas and oceans. It is posited that the conventional law of the sea may be developed by codification and practice.

HYPOTHESIS (Contd.) •

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It is also, posited that the law of the sea may control the arbitrary and illegal uses of the sea. It may be hypothesised that the law of the sea shall ever establish a peaceful world order for successive future generations to come.

RESEARCH METHODOLOGY The methodology used in this dissertation is as under:

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The research applied in this dissertation is doctrinal . Meaning, thereby, that mostly international treaties, agreements, statutes, books and articles are used for giving substance to the dissertation.

RESEARCH DESIGN •

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The research designed in formulating the ideas while drafting the dissertation on the subject, Law of the Sea, is mostly descriptive and explanatory. Questions are pertinently asked and attempts of giving the reasonable solutions have been thoroughly incorporated in the dissertation. Critically analysis and data collection through various sources i.e. both Primary and Secondary sources of data research.

INTRODUCTION TO SEA •

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Geographically, the “SEAS”  around the world are an expanse of salt water that covers most of the earth's surface and surround its land masses. The Law of the Sea treats ‘ all oceans as Seas’. Andaman Sea Bering Sea, Arabian Sea, Mediterranean Sea are some of the well known examples of sea.

SEAS OF THE WORLD

IMPORTANCE/PURPOSE OF THE SEA •

Sylvia Ear le once observed " With ever y drop of water you drink, ever y br eath you take, you' r e connected to the sea. No matter wher e on earth you l ive. “ 

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PURPOSE: Seas are used for many pur poses namely: Navigation Research Tr eatment and Conver sion of seawater to f r eshwater Wars Sea Tr ade etc.

LAW OF THE SEA •

DEFINITION: "The Law of the Sea is a body of international law that concerns the principals and rules by which  public entities, especially states, interact in maritime matters, including navigational rights, sea mineral rights, and coastal waters jurisdiction." 

James Harrison, Making the Law of the Sea: A Study in the Development of International Law  (2011), p. 1.

1982 LAW OF THE SEA CONVETION: FACT SHEET • • • • • •

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10 December 1982 Signed: Location: Montego Bay, Jamaica Effective: 16 November 1994 Condition: 60 ratifications Parties: 166 as of 2013 Depositary: Secretary-general of the United Nations Languages: Arabic, Chinese, English, French, Russian and Spanish

APPLICATION OF THE LAW

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As far as the application of the law of the sea is concerned than it is limited in its application. Although, it is universal in nature  but is applied mutatis mutandis to State Parties and other entities.

SCHEME OF THE LOS CONVETION

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The convention is divided into > 320 articles and > 9 annexes.

1982 LOS CONVENTION: HISTORICAL ACCOUNT •

The UNCLOS replaces the older and weaker freedom of the seas concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek.

HISTORICAL ACCOUNT (contd.) •

All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them (the mare liberum principle promulgated by Grotius).

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1958 UNCLOS – I resulted into 4 Conventions.

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1960 UNCLOS – II ended without any outcome.

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1973 UNCLOS – III resulted into the LOS Convention.

MARITIME BOUNDARIES

INTERNAL WATERS •

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Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right of passage within internal waters.

TERRITORIAL SEA •

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Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. "Innocent passage" is defined by the convention as passing through waters in an expeditious and continuous manner, which is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing, polluting, weapons practice, and spying are not "innocent", and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of its security.

CONTIGUOUS ZONE •

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Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit. Here, a state can continue to enforce laws in four specific areas: customs, taxation, immigration and pollution, If the infringement started within the state's territory or territorial waters, or if this infringement is about to occur within the state's territory or territorial waters. This makes the contiguous zone a hot pursuit area.

EXCLUSIVE ECONOMIC ZONE (EEZ) •

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These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. Foreign nations have the freedom of navigation and overflight, subject to the regulation of the coastal states. Foreign states may also lay submarine pipes and cables.

CONTINENTAL SHELF •

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It is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater. A state's continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobaths (the line connecting the depth of 2,500 meters). Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. Coastal states also have exclusive control over living resources "attached" to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

INTEGRAL AGREEMENTS

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IMPLEMENTING AGREEMENTS ON PART IX OF THE 1982 UNCLOS. STRADDLING FISH STOCKS AGREEMENT

CONCLUSION •

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This dissertation addresses the process of international law making in the context of law of the sea. The 1982 LOS Convention and the two implementing agreements creates a universal legal order for the oceans. The law of the sea must continue to evolve. It is the progressive development of the law of the sea in the wake of the LOS Convention which forms the primary subject of investigation in this dissertation.