International Law

Project report on UN Convention on the Laws of the Sea (UNCLOS – III)

Project report on UN Convention on the Laws of the Sea  (UNCLOS – III)

By

Saumya Parmarthi

Symbiosis Law School, NOIDA

INTRODUCTION

 

In the early twentieth century the plan of codifying many parts of International Law was a thought so bought by all. Though it took years but a positive outcome became ‘Hague Codification Conference’ in 1930. After, World War II, the ILC produced a set of draft articles which were considered by at the UNCLOS I in 1958. The Convention left some issues unanswered, one of them was, “breadth of the Territorial Sea”. Therefore, UNCLOS II in 1960 was convened and all such questions were answered but without an agreement. Four different Conventions were created on Territorial Sea, High Seas, Continental shelf and fisheries conservation & management. Then, a complex matrix of unresolved issues and emerging agendas were considered in UNCLOS III which met from 1974-82 & culminated in the adoption of the ’82 LOSC. Its ‘Implementation Agreement’ was agreed in July’94 and entered into force in November’94 with 160 states (including EU).

The Convention establishes a comprehensive legal framework to regulate all ocean space, its uses and resources and relates to the entire world’s oceans, also considered the “constitution of the oceans”. It is the most extensive and detailed[1] product of codification activity States have ever attempted and successfully concluded under the aegis of the United Nations.

The preamble of the Convention iterates that, the states who are parties and agreed with this convention are:

  • Prompted by the desire to settle, in a spirit of mutual understanding and cooperation
  • Noting the developments from the past laws
  • Conscious that the problems of ocean space need to be considered as whole
  • Recognizing the desirability of establishing a legal order for the seas and oceans
  • Achievements of these goals will contribute to the realization of just and equitable international economic order
  • Affirming that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.


DELIMITATION OF MARITIME ZONES BETWEEN OPPOSITE OR ADJACENT STATES

 

INTRODUCTION

A maritime boundary is a conceptual division of the Earth’s water surface areas using geopolitical criteria. It includes, unless contrary, areas of exclusive national rights over mineral and biological resources, encompassing maritime features, limits and zones. Whereas, delimitation is the process of legally establishing the outer limits (“borders”) of a state/country within which full territorial or functional sovereignty is exercised.[2]

The LOSC’s article 15 provides that in the absence of an agreement to the contrary, the states may not extend their territorial seas beyond the median or equidistance line unless there are historic or other ‘special/ equidistance circumstance’[3].

APPLICABLE PROVISIONS[4]

Article 3 provides, every state can recognize and establish the breadth of its territorial sea restricted up to a limit of 12 nautical miles. This restriction will be measured from the baselines.

Article 33 states, every coastal state have the right to exercise control its Contiguous zone. The state can undertake appropriate actions so as to prevent the infringement of its customs laws, fiscal laws, immigration laws & sanitary laws within its territory and its territorial sea and punish any such infringer. The contiguous zone of a state is restricted up to 24 nautical miles from the baselines from which the breadth of the territorial sea of that state is measured.

Article 57 lays down that the extent of the exclusive economic zone of a state and limits such a zone to 200 nautical miles from the baselines from which the breadth of the territorial sea of the state is measured.

Article 74 deals with the delimitation of the exclusive economic zone between States with opposite or adjacent coasts. It lays down that States with opposite or adjacent coasts must come into agreement, as referred in Article 38 of the Statute of ICJ for the delimitation of the exclusive economic zone between them. The main focus of this provision is the achievement of an equitable solution.

If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV of UNCLOS’ 82.

The concerned States, in a spirit of understanding and co-operation, are required to make every effort to enter into provisional arrangements of a practical nature. Also, during this transitional period, they are not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

In case of an existing agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone are to be determined in accordance with the provisions of that preexisting agreement.

Article 83 states the law relating to the delimitation of the continental shelf between States with opposite or adjacent coasts. This provision lays down the identical substantive and procedural aspects of law as that provided under Article 74, UNCLOS’ 82. The only difference between the two provisions is that Article 74 applies to delimitation of the exclusive economic zone between States with opposite or adjacent coasts, whereas, Article 83 relates to delimitation of the continental shelf between States with opposite or adjacent coasts.

 

CASE STUDY

The Eritrea vs. Yemen case involved a dispute between two States about sovereignty over the Red Sea area between them. The second phase of Eritrea vs. Yemen – the maritime delimitation – took place after the Tribunal had already allocated between them sovereignty over the four sets of contested mid-sea islands.

The Tribunal stated at the outset that it would approach the delimitation using as a rebuttable presumption the proposition that a median line fits the requirements of UNCLOS Articles 15, 74 and 83(8). The Award recorded that:

“… the Tribunal has taken as its starting point, as its fundamental point of departure, that, as between opposite coasts, a median line obtains.

Both Parties in turn claimed that their proposed delimitation line was based on the median line. The Parties differed with respect to the effect that should be given to the mid-sea islands, whose sovereignty had been decided in the first phase.

The Tribunal divided the maritime area between the Parties into three sectors – north, middle and south – for the purpose of the delimitation. In the north, it held that the delimitation was essentially a mainland-to-mainland delimitation between the Parties’ opposite coasts. In the middle, it held that the delimitation became complicated by the presence and proximity of the mid-sea islands. The Tribunal concluded that the boundary would have to be moved to the west in order to take into account overlapping territorial seas and three sets of mid-sea islands. The Tribunal gave the mid-sea islands certain partial effects, but did not explain its methodology other than indicating that the line that it eventually described resulted in a “neater and more convenient international boundary”.

In both phases of the arbitration, the Parties put forward claims to the effect that their nationals relied significantly on the Red Sea fishing industry and fish consumption. In the first phase Award, the Tribunal had conferred the two principal sets of mid-sea islands on Yemen. However, it placed a novel and undefined limit on Yemen’s sovereignty over those islands:

In the exercise of its sovereignty over these islands, Yemen shall ensure that the traditional fishing regime of free access and enjoyment for the fishermen of both Eritrea and Yemen shall be preserved for the benefit of the lives and livelihoods

The deposit if of the first Award similarly decreed that:

The sovereignty found to lie within Yemen entails the perpetuation of the traditional fishing regime in the region, including free access and enjoyment for

Despite this ruling in the first phase, it was not evident from the Award what this “lien” or limitation of Yemeni sovereignty entailed. Nor was it clear how this caution might modify the maritime delimitation to be effected in the second phase. The Tribunal based its decision to recognize and give effect to the traditional fishing.

The Tribunal clarified that the obligation imposed on Yemen in relation to its sovereignty over the mid-sea islands extended to requiring Yemen to enable Eritrean fishermen to exercise their entitlement to fish around the islands and even use the islands freely for such traditional activities as drying fish, repairing boats and nets, establishing and using way stations and taking shelter.

The Tribunal took the view that the obligation also required Yemen to permit artisanal Eritrean fishermen to fish up to its mainland coasts and to permit them to land their catches in Yemeni ports.

Despite the attention given in the second Award to the clarifying the obligations imposed by the reference to the protection of the traditional fishing regime, the Parties appear to have remained uncertain of their exact scope.

Shortly after the second Award was issued, the Parties met to discuss various aspects of their fishing activities in the Red Sea. It transpired that they had differing views of the Award on the issue of the traditional fishing regime and Eritrea requested a clarification from the Tribunal. A decree issued by the Tribunal in response to this clarified that Yemeni fishermen did not enjoy a right to fish off Eritrea’s continental coast inside the internal waters of the Dhalak Islands in the northern sector.

This ruling was particularly significant because the best fisheries in the Red Sea are around the mid-sea islands (awarded to Yemen in the first phase), off Yemen’s mainland coast, and around Eritrea’s Dhalak Islands. The effect of this clarification meant that, while Eritreans could fish around Yemen’s fishing grounds in the Red Sea, Yemenis could not fish off Eritrea’s fishing grounds. Thus the benefit of the protections afforded to the traditional artisanal Red Sea fishermen in effect fall substantially to Eritrea. [5]

 


 

CONCLUSION

 

The birth of a nation’s authority to control its coastal waters has been traced back to the sixteenth century.  But till the mid 1960s the law was un-codified though in early 1980s an appropriate & complete came into existence. Thus, the 3 nautical mile (nm) limit of the territorial sea resulted from the “cannon shot” rule to 12 nm territorial sea , the custom of asserting a 12 nm territorial sea, 24 nm contiguous zone, and 200 nm EEZ, codified in the UNCLOS’ 82.

In Eritrea vs. Yemen, even though the Tribunal’s post-Award attempt to clarify the scope of the traditional fishing regime, it appeared that the issue might still be considered by some to be far from clear. It was still unanswered as to whether the subject was dealt with in sufficient clarity to remove the suspicion that the issue of the traditional fishing regime could possibly give rise to future problems at both a personal as well as an interstate level.

The World was in need of a set of codified international laws for a peaceful living. Though these laws distributed natural resources amongst nations but created boundaries for all the states whether parties or not, to provide equality in such distribution.

BIBLIOGRAPHY

Brownlie I, “Basic Documents in International Law”, Oxford University Press, Edition 6th – 2009, Reprinted 2012, page 66-96

Evans MD, “International Law”, Oxford University Press, Edition 2010, page 651-686

Antunes NM, “Towards the Conceptualisation of Maritime Delimitation”, 2003

Anand RM, “Origin and Development of the law of the sea”, 1983

Prescott V & Schofield C, “The Maritime Political Boundaries of the World”, Edition 2nd, 2005

Endnotes

[1] It consists of more than 400 articles of the text and of nine annexes that are an integral part.

[2] G.J. Tanja, Ministry of Foreign Affairs, The Netherlands, comment in I.F. Dekker, H.H.G. Post, and T.M.C. Asser, The Gulf War of 1980-1988: The Iran-Iraq War in International Legal Perspective, Martinus Nijhoff Publishers (1992), pp.44-45.

[3] Accepted in the case, Maritime Delimitations and Territorial Questions Between Qatar & Bahrain, ICJ Reports2001, p 40, paras- 175-176

[4] of UNCLOS’ 82

[5] Volterra, R. “Brief Reflections On Certain Aspects Of The two UN-CLOS Cases”

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