LAW37490 The Law Of The Sea Essay.

Hugo Grotius had published a famous treatise in the year 1608 which talked about the freedom of sea wherein he specifically detailed about the fact that the seas cannot be concurred by any single entity and that it was a common property of all. However since that era, the principle of the freedom of sea and along with the same lays the outcome of an exclusive and separate flagship jurisdiction has been the clarion label of the law of the sea. But even if the freedom of the sea was being taught extensively yet there were restrictions which were existing to the said liberty. The law of the sea has basically been seen swinging between freedom and restriction. In the present scenario, it has finally been accepted that there are some constraints that has ensured that the freedom is not in its totality. The ceilings that have been imposed are not confined to any particular sea in general but is curbed to waters ahead of the nationwide authority and includes the economic zone as well as the high seas. High seas gives autonomy to all the countries to navigate, over flight, lay submarines, cables, pipelines and construct artificial islands and conduct fishing as well as research on the marine lifestyle. But the freedom is dominated by the various rules and regulations spelt out in the 1982 Law of the Sea Convention (LOSC) and the other rules laid down in the International Law.

The said report critically evaluates the recent developments and the expected juridical basis for an incorporated, cross sectoral regime for the high seas governance. It also describes the recent developments that are taking place in the law of the sea so as to curb the increasing threats to the oceans and the seas from the present as well as the future usage and also the impact of the change in the climate. The article uses the example of the Arctic region wherein it describes as to how the present marine surroundings of the region is under tremendous pressure due to immense change in the climatic conditions and the augmentation in the actions of the humans.

The oceans are said to cover an area up to seventy percent of the total surface area available on the planet Earth. Before the developments are discussed and the various agreements which are being entered into by various States so as to deal with such threats, it is very crucial to understand the geographical coverage of the areas beyond national jurisdiction. However, in the dictionary of LOSC, the term areas beyond national jurisdiction also comprise of the high seas as well. Therefore it can be rightly said that ABNJ comprises of such regions of the sea which go across the limits of the coastal state dominion and authority. As per UNCLOS two specific idiosyncratic authoritative frameworks applies which are high seas and the administration which is pertinent to the international seabed area. The spatial coverage of the ABNJ, constitutes of 62 percent of the oceans however the same is just a rough estimation of the area being covered since the accurate limits of the Exclusive Economic Zones and the continental shelves of various states are yet to be determined. To be exact the demography of the ABNJ will be finalised only once the coastal area institute their territorial sea, EEZ and continental shelf boundaries and when the same is not under any dispute by the other states. The same is an issue because sea has no boundaries marked specifically. Thus even though efforts are being made to specify the limits of the ABNJ the same is still not defined fully.

Further a major part of the high seas belongs to the Atlantic, Arctic, Pacific and Indian Oceans is closely attached to the coastal state continental shelf where it lengthens 200 miles across the baseline. The various countries employ autonomous privileges on the unmitigated continental shelf for the purpose of exploration and exploitation of the resources which are not alive and the inactive species. These states may also end up implementing various policies so as to make sure that the management is sustainable and the attached biodiversity is conserved inclusive of the marine protected area.

Even though it is not necessary or spelt out any where that the continental shelf resources have to be conserved and managed by the coastal states yet it is there implied duty to safeguard the marine surroundings and to make sure that the natural resources are subjugated within the environmental policies. The main area of concern is the Mediterranean Sea wherein there are major chunks of high seas that are covered under PART VII of UNCLOS, but the seabed below is a part of the continental shelf of the states and not a designated area of the international seabed. Thus to address these issues, a new agreement is in vogue which is specifically being designed to cater to the issues related to the implication of the human activity on the marine life including in areas beyond national jurisdiction (ABNJ) and the universal drive of political and legal developments on the portray of the international law.

The gamut of services being offered by the nautical ecology is well understood by the international community along with the rich biodiversity available. As known well, the areas beyond national jurisdiction comprises of highly sensitive and rich in biodiversity regions such as seamounts, cold water corals and hydrothermal vents. These systems are too delicate in nature and are often endangered by the human conduct such as that of fishing and sea mining which also lead to certain changes in the climate. Before the brief about the recent developments in the LOSC is discussed and narrated it is very crucial to understand the kind of threats they offer.

The seamounts are such system of flora and fauna which are well-known to sustain huge biodiversity and extraordinary organic societies inclusive of cold water coral reefs and fishing resources. From here it is very evident from where the biggest threat comes i.e from the large number of fishing activities. Seamount hunt fisheries have very long lasting implications on the cold-water corals. These also lead to change in the climatic conditions, bio prospecting and subterranean marine removal of ferromanganese coating. Similarly the deep sea coral ecology is also significant as they have the calibre in sustaining pharmaceuticals, nutritional addition, enzymes, pesticides, cosmetics and such other commercial products. Erosion of the bottom surface, drilling of hydrocarbon, seabed mining activities which causes extinction of prevalent species of cold-water corals, ocean acidification and direct exploitation.

Another threat that these activities causes is to the hydrothermal vents which contain original biochemical and physiological characteristics which helps them to stay alive in severe ecological surroundings. The main threat to these vents are from the marine scientific research and bioprospecting. Further to this mining of the poly-metallic sulphide deposits lead to a probable endangerment to the surrounding hydrothermal vent ecology. Apart from these specific kinds of ecosystems, the other ecological environment which are attached to the abyssal plains, deep-sea trenches, canyons, cold seeps are also threatened due to the pollution being caused to the marine resources, the bottom rummaging activities, bio prospecting and changes in the climate due to emission of gases which are harmful.

LOSC is a law that was formulated to deal with such issues with regards the oceans of which the negotiating States were aware of. It did not take into account the problems of the marine genetic resources, biological multiplicity or such other various problems which point towards governance of the marine surroundings of the areas beyond national jurisdiction. Theoretically, UNCLOS (United Nations Convention on the Law of Sea) uses the phrase ‘beyond the limits of national jurisdiction with regards the worldwide marine region, where the marine floorboards and the mineral resources are the general inheritance of mankind. It segregates the entire area of the ocean into various maritime zones which covers within as well as beyond the national jurisdiction. The only area where the ocean spaces provide total independence to the coastal States are the internal waters and the territorial sea. There rights are more restricted in the EEZ and the continental shelf areas in comparison to the territorial sea. However, nonetheless these States can conduct the work of investigation, utilization, protection as well as supervision of the natural resources of these zones. Thus while utilising their rights, these States should pay heed to the rights and duties of the other States.

UNCLOS specifically puts pressure upon preservation of the marine atmosphere and thus spells out a permissible skeleton to take steps for the security of the frail ecosystem. Article 194(1) obliges a responsibility on the States to take such steps which are consistent with UNCLOS and are important for the prevention and reduction of contamination of the aquatic settings from any ways and means. Thus it can be said that even though the term ‘biodiversity’ does not form part of the UNCLOS yet it applies to the nautical livelihood and mentions about the unusual ecological unit, habitation, variety and such other form of the naval living that include biodiversity. The rules spelt out under UNCLOS for saving the marine environment diverges basis the location in the water column, the maritime zone and the nature of the usage of sea which has an adverse impact. The same is due to the fact that UNCLOS segregates the sea into various nautical zones extending seaward from the coast and towards the coastal States and other States where they have varying rights and obligations. Further to this UNCLOS also formulates rules and regulations for the various lawful usage of the sea such as fishing, shipping and marine scientific research.

UNCLOS has made it clear that the coastal and such other States have dual work i.e. being accountable for satisfying their international commitment with regards this issue and also bear the legal responsibility for any consequences which may occur due to contravention of such obligations. They are also accountable for accessing and monitoring the expected impacts of the various activities under the national jurisdiction also. The States are required to take all those steps which would entail towards safeguarding of the resources which are residing in the high seas also.

The Marine Scientific Research which is being done in the water bodies of the EEZ or in the seabed of a continental shelf is bound under more stringent rules. Although it requires permission to be taken from the coastal State but even then they have no right to refute access if the MSR’s activities are designed in a manner which would help to increase the precise awareness of the oceanic atmosphere for the advantage of the people.

Even though the requirement for higher incorporation between various sectoral actions is normally accepted, yet there remains a major issue in a decentralised legal system. It is crucial to note that some allocations demanded for a cross-sectoral advancement  which would account for the collective implications of the activities undertaken by people in ABNJ. As soon as the thought of making a new lawful agreement started to gain grip during the meetings of the BBNJ and thus the regulators started to diversify their attention towards the linkage between the new agreement and the existing agreement on fisheries. Further to this, the fact that the mandates mentioned in the already existing two agreements would not be breached and neither would the new agreement mention details about preservation of the sea which are already a part of the existing agreements.

The said principle helps to fill the gaps that exist in preservation of ABNJ and the fisheries. The discussion with this regards has been of some use and while the BBNJ discussions were being conducted, agreement with regards the same was accorded. In the 2014 BBNJ meeting it was made clear that there should be a balance maintained between the challenging handling of oceans and between preservation and sustainable use, the nautical surrounding should be adequately preserved and protected, the same should be equally and fairly used, precautions should be taken while the oceans are being used, decisions with regards the various activities being conducted should be made after paying heed to the final outcome and its impact on the oceans, ecosystem approach, adaptive administration, freedom towards conducting activities in the high seas but at the same time accepting the responsibilities attached. Apart from this there were some specific mandates spelt out for the developing nations which included the various land locked States such as they should take the responsibility of not transferring any contaminated material or convert one type of a pollutant into another, adhere to the principles of polluter-pay, understand the collective implication, cohesion. The said principles comprises of a mixture of some well accepted legal principles and such other approaches rules and attributes.  

As is understood the new instrument is being introduced and formulated simply because the older two agreements seem to have missed out some fo the areas to be covered. The underlying principle behind grounding a new agreement is the insufficiency of the UNCLOS and the various nautical environmental agreements in fighting the coercion being masqueraded by the human activities to the biodiversity in the deep ocean. However the fact that the risks connected and the importance of the threats differentiate between places cannot be ignored and as the time would pass by, meteorological and oceanographic factors which includes the climatic impacts as well will have a significant impact on the environment of the oceans and the seas. As per the Secretary-General of the United Nations it is understood that it would further include restrictions on the fishing activities specifically which are illegitimate, unregulated and unreported, fishing practice which can cause harm and damage to the seabed, mining in the deep seabed, offshore energy exploration and production operations, shipping activities, pollution from littering of the sea and ocean with plastic and such non-biodegradable resources, birth of such species which are dangerous, laying of cables, marine scientific research, spilling of acid in the oceans along with other implications of the climatic changes.

The United Nations Convention on the LOSC institutes a broad structure which entails towards ensuring the regulation of the oceans. One of the main concern which is being addressed is that of the guideline with regards the maritime assets in regions across the nationwide authority. States across the globe have resorted to various discussions for the formation of the ‘implementation agreements’ so as to cater to the various gaps that exist in the present LOSC. Two of the agreements have already been accepted and a third one is one the verge of finalisation so as to be able to cater to the various issues with regards areas beyond the national jurisdiction.

On 13^th of February 2015, the marine biological diversity beyond areas of national jurisdiction (BBNJ) working group summarised its findings and suggested that the United Nations General Assembly (UNGA) should start the procedure of intervention if an International legal binding instrument for the protection and sustainable usage of the BBNJ. Generally the States demand for such an agreement which is globally accepted in the field of areas beyond national jurisdiction, this general arrangement shows crucial diversifications of opinions on the accurate range and comfort of such an instrument and its linkage with those arrangements which already exist. The third agreement is expected to cover the areas wherein general principles with regards the conservation and usage of marine biological resources. The same will also cover points such as usage of the area based management tools, the usage of the environmental impact assessment and ways and means for building up of the capacity and transfer of the technology.

As the job of the BBNJ working group came to an end in the month of January 2015, a significant breakthrough was attained when the United Nations General Assembly decided to pass a resolution 69/292 for the formation of a legally binding instrument under UNCLOS which would deal on the conservation and sustainable usage of the marine biodiversity of areas beyond national jurisdiction. More to this, in order to ensure that the new instrument is readily acceptable by all, the Preparatory Committee is forced to ensure and wear out all efforts to come to accord on substantive issues by consent wherever possible. As mentioned earlier also, these discussions would deal about four main issues i.e. area based management tools, impact on the environment, building of the capacity and transfer of marine technology.

Amongst the various seas and oceans across the globe, one of the major water bodies is the arctic ocean in the polar region. This section describes the kind of regulations being installed as an example to portray with regards the safeguarding of the marine biodiversity. The arctic is said to be a part of the polar regions. The said area has been chosen as an example simply because there has been a strong competition amongst the Arctic Costal States. One such significant portion of contest and assertion is the continental shelf in the Arctic.

Part XII of the LOS Convention mentions special provisions with regards the polar region environment. Therefore the submission of PART XII to the Arctic Ocean is subject to particular geographical and climatic scenarios due to which a special provisions, Article 234 has been adopted. As per Article 234 of the Convention, there lies a specific provision which details about the avoidance, diminution, and control of the contamination of the marine life from the various containers in the ice-covered areas within the EEZ.

Even though the two polar regions i.e. Arctic and Antarctica are not similar in position as one is in the North Zone and the other in the South Zone, the provisions are also not applicable similarly. Most of the regulations are based on the dominion, dominion rights as well as jurisdiction in the coastal waters. Since there does not lie any generally recognised coastal states in Antarctica, thus the provisions and the rules which are based on the subsistence of a coastal state and the marine areas adjacent to it, the same is construed and applied mutatis mutandis as per the actual scenario which exists in Antarctica.

A very apt reason for the conduct of the said study is seen in the Arctic Environmental Protection Strategy (AEPS) which was taken up at the First Ministerial Conference on the Protection of the Arctic Environment in Rovaniemi, Finland on 14^th June 1991. Here eight Arctic countries articulated their views on the importance of the LOS Convention and also for the implementation of the strategy. Because of the explicit geographical, climatic, historical and political conditions in the polar oceans and the fact that the LOS Convention does not mention about any sea or ocean to which it is or is not applicable, there is always a question which arises i.e. to what extent the Convention is applicable to the polar.

As per Part II of the LOS Convention, passage of a foreign ship via the territorial waters shall be regarded as detrimental to the harmony or safety of the coastal State if it gets involved in any such actions of deliberate and serious contamination which is not in line with the rule set out in the Convention. When the coastal areas specifically draws lines for the sea lanes and segregates the traffic within the protective sea, it may specifically need tankers, nuclear power ships and ships carrying nuclear related products or such other explosive or noxious elements to restrict their passage to the seas. Such vessels when trying to impose their rights on such innocent passages are require to be in possession of documents and ensure that they take all necessary steps to as mentioned in the international agreements. The said rules are also implied upon the straits.

However, special mandates on the maintenance and protection of the marine environment are mentioned in the new regime which has been agreed upon at the UNCLOS III for straits used for navigation in the foreign seas. Those vessels which are in the transit passage are necessarily needed to adhere with the generally accepted international convention, measures and practices so as to ensure avoidance, diminution and control of pollution from the ships. States which are bordering the straits are required to cater to such laws and regulations which relate to the shipment channel through straits with regards the prevention, reduction and control of pollution.

A universal disapproval has been that there are some problems which are still not taken care of properly by the LOS Convention. Even though the said statement is true, yet it is very important to keep in mind the main purpose and nature of the LOS Convention. The LOS had no option but to ensure that all the requirements are covered in one document itself. Thus when compared with the first UN codification of the law of the sea, the LOS had t incorporate new topics such as the exploration and exploitation of the seabed beyond national jurisdiction, the preservation of the marine surrounding, marine scientific research and expansion and transmission of marine technology. Therefore the LOS Convention was rightly called as the ‘Charter of the Oceans’. However till date the LOS Convention is construed as the most capacious treaty.

Thus in comparison, LOS Convention basically was supposed to be a treaty which was specifically dedicated towards the preservation and protection of the sea. But unfortunately it fails to answer to queries with regards the usage of seas and oceans for the purpose of military. The rules and regulations of the LOAS Convention on the preservation of the marine environment and the various rules and regulations that is mentioned, connotes a meaningful contribution to current international law but only limited to the extent it can coexist with other general and regional norms in the field. As is discussed in this report one very crucial aspect with regards the already developed treaty system of the Antarctica and the first help forwarded by the Arctic countries.

On a concluding note it is also understood that the ocean space beyond the national jurisdiction contributed to the genetic communities that present unique inherited characteristics. The marine biodiversity is highly endangered due to increased shipping, exploration and exploitation activities and the various impact of the climatic changes. Thus although the international law of sea has developed to a great extent towards development of more stringent rules with regards safeguarding of the marine life underneath the waters, yet it keeps on demanding and revision of the existing provision as and when the human activities increase.

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