THE LAW OF THE SEA: CURRENT ISSUES AND FUTURE CHALLENGES IN MARITIME GOVERNANCE

ABSTRACT

The Sea contains more than 70% of the Earth’s surface area, and more than 90% of the Earth’s water can be found in our Sea. The Law of the Sea, governed by United Nations Convention on the Law of the Sea (UNCLOS) regulates maritime activities but faces challenges from geopolitical tensions, environmental degradation, and technological advancements. The article examines geopolitical disputes in the South China Sea and Arctic, climate change impacts, deep-sea mining, maritime piracy, and overfishing, etc. The future challenges in maritime governance, such as climate change, emerging technologies, maritime security, and international cooperation. It emphasizes the need for adaptive legal frameworks and the evolution of the Law of the Sea to balance economic interests with environmental protection, promoting peace, stability, and sustainability in global maritime affairs.

KEYWORDS: Law of sea, United Nations, maritime governance, ocean economy, marine policy.

Introduction

The Law of the Sea, an international law governing states’ rights and responsibilities in ocean use, is crucial for global maritime governance. It balances interests in resource extraction, marine environment preservation, and navigational freedoms. However, challenges such as territorial disputes, environmental degradation, new maritime technologies, and climate change are reshaping maritime governance in the 21st century. This article explores how the Law of the Sea is evolving to address these issues and future challenges.

“The Ocean of Our Future,” during EXPO’98, which addressed matters from marine conservation to ocean science and technology. The report also included a specific chapter on Ocean Governance which clearly stated that “The most comprehensive challenge to be faced concerns the development of oceanic governance systems that promote peace and security, equity and sustainable development. The application of modern technology to the oceans, when poorly envisaged, determines their deterioration and over-exploitation. It is simultaneously the most powerful force to allow transforming potentialities into realities and to satisfy basic needs” (IWCO, 1998).[1]

The Law of the Sea, adopted in 1982, provides clear guidelines on territorial waters, exclusive economic zones, the continental shelf, and high seas. It established institutions like the International Seabed Authority and the International Tribunal for the Law of the Sea, which have played crucial roles in resolving maritime disputes and regulating seabed mining. However, UNCLOS faces criticism for its limitations in addressing issues like deep-sea mining, maritime piracy, and geopolitical conflicts.

The United Nations Convention on the Law of the Sea (UNCLOS)

The first attempt at ownership of the sea was expressed by Cornelius van Bynkershoek, a Dutch lawyer who believed that states should have a limited right to own and occupy some sea space and propagated the “cannon-shot rule”. In his view, ownership of the sea was possible only as far as “the cannon will carry”. This soon became the accepted norm4 and became the basis for the three mile limit being legitimately accepted as the extent of the territorial sea.[2]

Work on a uniform global framework began in 1949. The International Law Commission prepared four draft conventions. This led to the First conference on the Law of the Sea (UNCLOS I) being held in 1956, and resulted in four treaties being concluded at Geneva between February 24 and April 29, 1958. These were the Convention on Territorial Seas and Contiguous Zones, the Convention on the Continental Shelf, the Convention on the High Seas and the Convention on Fishing and Conservation of living resources on the high Seas. These ultimately came into force between September 30, 1962 and March 20, 1966. However, there were still unresolved issues such as a decision on the maximum breadth of the sea. This could not be established even at the Second Conference (UNCLOS II) held at Geneva from March 17 to April 26, 1960. Held over a duration of six weeks in the shadow of the bipolar Cold War world order, it did not result in any new agreements.[3]

The Third Conference (UNCLOS III) was held in New York. More than 160 countries participated in the discussions, which continued from 1973 to 1982. The Convention was signed on December 10, 1982 at Montego Bay in Jamaica and finally came into force on November 16, 1994 after Guyana became the 60th nation to ratify it. One hundred and sixty-eight parties comprising 164 UN member states and four others – Palestine (UN Observer State), the Cook Islands, Niue, and the European Union (EU) as a separate entity have now ratified it. It is a completely binding document and comprises 17 parts, 320 articles and nine annexures and clearly defines maritime zones, namely, the baseline, the territorial waters, the contiguous zone, the exclusive economic zone (EEZ), the continental shelf, the international seabed area, and archipelagic waters.[4]

UNCLOS serves as the legal framework for the enforcement of maritime laws. The Convention aims to promote peaceful, equitable, and sustainable use of ocean spaces by balancing the interests of coastal states with those of the international community. The key components are:

1. Teritorial seas: The territorial sea spans up to 12 nautical miles from a coastal state’s baseline, which is typically the low-water line along the coast but can be adjusted for geographical features. Coastal states have sovereignty but must respect the right of innocent passage for foreign vessels, which is not detrimental to the state’s peace, good order, or security. During innocent passage, foreign vessels can navigate through the territorial sea, but the state retains the right to regulate it.
2. Exclusive Economic Zones (EEZs): The Exclusive Economic Zone (EEZ) spans 200 nautical miles and grants coastal states exclusive rights to explore, exploit, conserve, and manage natural resources, including living and non-living resources, in the water column and under the seabed. The coastal state has the authority to enforce laws concerning marine resource conservation, environmental protection, and scientific research within the EEZ, while respecting navigational freedoms, overflight, and submarine cable and pipeline laying by other states.
3. Continental Shelf: The continental shelf is the natural extension of a state’s land territory into and under the ocean, extending beyond the territorial sea, including the seabed and subsoil of submarine areas from the coast to the deep ocean floor. States can extend their continental shelf beyond 200 nautical miles of the EEZ, up to 350 nautical miles from baseline or 100 nautical miles from 2,500-meter iso-bath, subject to specific conditions and scientific evidence. The coastal state has exclusive rights to explore and exploit natural resources on the continental shelf, including mineral and hydrocarbon resources, and subsoil.
4. High Sea: The high seas encompass all ocean regions beyond a state’s territorial sea, EEZ, or continental shelf, which are beyond national jurisdiction and open to all states. The principle permits states to exercise freedom of navigation, overflight, and submarine cable and pipeline laying, as long as they don’t interfere with other states’ lawful rights. High seas are vulnerable to IUU fishing due to challenges in monitoring and enforcement, affecting sustainable fisheries management and causing significant ecological and economic impacts. Overfishing in high seas fisheries is a significant issue due to inadequate regulation and monitoring, leading to resource depletion.

 Legal and Institutional Challenges

The United Nations Convention on the Law of the Sea (UNCLOS) provides a comprehensive framework for maritime governance, but it faces numerous legal and institutional challenges that hinder its optimal functioning. This brief identifies key challenges in these areas.

• Territorial and Jurisdictional Disputes: UNCLOS establishes maritime zones like territorial seas, exclusive economic zones (EEZs), and the continental shelf, but ambiguities in defining and delimiting these zones can lead to disputes among states, such as in the South China Sea and Arctic region. “A State may not exercise its power in any form in the territory of another State, except by virtue of a permissive rule derived from international custom or from a convention”. “In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory”- was held in  S. Lotus: France V/S Turkey.[5] In South China Sea Arbitration (Philippines v. China) – Permanent Court of Arbitration (PCA), 2016, The Philippines initiated the South China Sea Arbitration case against China, resolving disputes over maritime rights in the South China Sea, with China asserting extensive rights based on the “nine-dash line. The PCA ruled that China’s claims on the nine-dash line had no legal basis under UNCLOS, as they were rocks or low-tide elevations without exclusive economic rights, not islands generating EEZs or continental shelves.
• Coordination Among Agencies: Overlapping mandates in maritime agencies can result in duplicative efforts or conflicting regulations, as seen with the International Maritime Organization and regional fisheries management organizations, which address marine pollution differently. Inconsistencies in regulations can hinder their effectiveness and pose challenges for states and operators navigating multiple regulatory frameworks.Poor coordination can lead to gaps in management, delayed responses to emerging issues, and inefficient use of resources. In the “M/V Saiga” Case (Saint Vincent and the Grenadines v. Guinea) – International Tribunal for the Law of the Sea (ITLOS), 1999, The ITLOS ruling in favor of Saint Vincent and the Grenadines underscores the necessity of clear and coordinated enforcement procedures among states to prevent disputes and ensure compliance with international maritime laws, emphasizing the significance of effective coordination.[6]
• Resource Allocation and Capacity Building: The allocation of marine resources, including fisheries and minerals, must balance the interests of developed and developing nations, making maritime governance crucial for ensuring fair and equitable resource allocation. Capacity building is crucial for developing and small island states to improve their maritime management skills and compliance with international regulations by providing them with necessary tools, training, and support. In the Southern Bluefin Tuna Cases – International Tribunal for the Law of the Sea (ITLOS), 2000, The case involved disputes between Australia and Japan over Southern bluefin tuna conservation and management, highlighting resource allocation issues and the need for effective management to prevent over-exploitation. ITLOS stressed the significance of international cooperation and resource sharing, emphasizing the need for effective management and allocation mechanisms for sustainable tuna stock use. The case highlights the difficulties in resource allocation in shared fisheries and underscores the necessity for collaborative strategies for efficient marine resource management and conservation.[7]
• Institutional Fragmentation: Different maritime agencies may have overlapping mandates, which can lead to duplicated efforts or conflicting regulations. Overlaps can lead to confusion among stakeholders, complicate compliance, and diminish the effectiveness of regulations. Effective management of complex maritime issues necessitates seamless collaboration between agencies like the IMO, ISA, and RFMOs, despite the challenges of coordinating actions with distinct priorities and mandates. Inconsistencies in regulations can hinder their effectiveness and pose challenges for states and operators in navigating multiple regulatory frameworks. In the “Gabcikovo-Nagymaros Project” Case (Hungary/Slovakia) – International Court of Justice (ICJ), 1997, The case, primarily a river dispute, underscored the importance of maritime governance principles, particularly in managing the environmental impact of a hydroelectric project, emphasizing the need for coordinated environmental protection measures. The International Court of Justice (ICJ) underscored the significance of cooperation and coordination in managing shared environmental resources and ensuring international obligations. The case underscores the necessity for integrated environmental management strategies and coordination among various institutions in maritime governance.[8]
• Evolving Challenges and Legal Adaptation: Evolving challenges like, technological advancements in autonomous ships, deep-sea mining, and satellite monitoring are posing new challenges to existing maritime laws, potentially leading to gaps in regulation and enforcement. This rapid pace necessitates updates to international maritime laws to effectively address new risks and opportunities. And Legal frameworks must adapt to mitigate climate change’s effects, including managing shifting maritime boundaries and safeguarding vulnerable marine ecosystems. Effective maritime governance requires adapting legal frameworks to accommodate new activities while balancing environmental protection and economic interests. In the “Chagos Marine Protected Area Arbitration” (Mauritius v. United Kingdom) – Permanent Court of Arbitration (PCA), 2015, Mauritius challenged the UK’s creation of a marine protected area around the Chagos Archipelago, raising concerns about UNCLOS application in conservation measures. The PCA ruled that the UK’s protected area was in line with UNCLOS, but Mauritius’ rights must be respected. The ruling underscored the need for balancing conservation efforts with state rights. The case illustrates how international law adapts to new environmental protection measures while balancing state rights and interests, illustrating how legal frameworks evolve to address marine conservation issues.[9]

Conclusion

The maritime governance landscape is constantly evolving, presenting both opportunities and challenges. The fragmentation of responsibilities among international agencies, allowing specialized expertise, often leads to overlapping functions and coordination difficulties. Key bodies like the International Maritime Organization, International Seabed Authority, and regional fisheries management organizations play crucial roles, but their overlapping mandates can complicate governance and enforcement.

The challenges of maritime governance necessitate improved coordination among agencies, adaptation of legal frameworks, and equitable resource management. Case law insights offer valuable guidance for refining maritime governance practices and establishing a coherent international maritime legal system. This ongoing process is crucial for sustainable and equitable ocean management.

The Law of the Sea is a complex framework for managing oceans, promoting international cooperation and maritime governance. However, challenges like territorial disputes, environmental degradation, and technological advancements persist. Addressing these requires a collaborative approach, innovative solutions, and a commitment to upholding principles. As the maritime domain evolves, so must the legal and institutional frameworks, ensuring oceans remain a source of shared benefit and sustainable development.

References:

[1] Guerreiro J ‘The Blue Growth Challenge to Maritime Governance’(Frontiers, 07 SEP 2021) <file:///C:/Users/Lenovo/Downloads/fmars-08-681546.pdf>

[2] Anil Jai Singh ‘UNCLOS: Facilitating ocean governance and maritime Security’  (Maritime Affairs: Journal of the National Maritime Foundation of India, 21 JUL 2022) < https://doi.org/10.1080/09733159.2022.2097643>

[3] Ibid

[4] Ibid

[5] Heena Kakkar ‘6 Case Laws on Maritime Laws’ (Legal service India E-Journal, 21 MAY 2020) <https://www.legalserviceindia.com/legal/article-10310-6-case-laws-on-maritime-law.html#:~:text=Territorial%20jurisdiction&text=The%20Court%20Held%20that%20a,exclusion%20of%20all%20other%20States.>

[6] ‘The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)’ (International Tribunal for the Law of the Sea) <https://www.itlos.org/en/main/cases/list-of-cases/case-no-2/>

[7] ‘Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures’ (International Tribunal for the Law of the Sea) <https://www.itlos.org/en/main/cases/list-of-cases/case-no-3-4/>

[8] ‘Judgment of 25 September 1997’ (International Court Of Justice) <https://www.icj-cij.org/node/103193>

[9] ‘Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom)’ (Permanent Court of Arbitration) <https://pca-cpa.org/en/cases/11/>