The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III).
The Law of the Sea Convention defines the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of
marine natural resources. The Convention started in 1973 and concluded in 1982, replacing four older treaties.
UNCLOS came into force in 1994; a year after Guyana became the 60th nation to ratify the treaty.
A. UNCLOS I – The first Conference of the UN on the Law of the Sea, held at Geneva, Switzerland, in 1956, resulted in four treaties, which concluded in 1958.
B. UNCLOS II –The second Conference of the UN on the Law of the Sea, held at Geneva, Switzerland, in 1960, lasted six-week but did not result in any new agreements. The developing nations and third world countries participated only as clients, allies, or dependents of the United States or the Soviet Union, with no significant voice of their own.
C. UNCLOS III – In 1973, the Third UN Conference on the Law of the Sea was held in New York. With more than 160 nations participating, the conference lasted until 1982. The resulting convention came into force in 1994, one year after the 60th state, Guyana, ratified the treaty. The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and
transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.
The provisions are discussed in details below.
UNCLOS has divided the various areas of the world’s seas into Zones of jurisdiction. These are:
A. Internal Waters
B. Territorial Waters
C. Archipelagic Waters
D. Contiguous Zones
E. Fisheries Limit
F. Continental Shelf
G. Exclusive Economic Zone (EEZ)
H. High Seas
UNCLOS decides the Coastal State’s jurisdiction in the waters mentioned above. None of the above zones are obligatory and each Coastal State has options to adopt them or not, subject to a maximum limit.
The Coastal State cannot impose its sovereignty in most of the zones, as it has limited rights.
BASELINE AND INTERNAL WATERS
Normal baseline – Except where otherwise provided in the Convention, the normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast as marked on large-scale charts officially recognized by the coastal State.
Straight Baseline – In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial
sea is measured.
Internal Waters – It is the waters on the landward side of the baseline. In other words, it is the waters between the shoreline and the baseline from which the territorial sea is measured. Wherever the use of straight baseline has the effect of enclosing as internal waters which was previously not, a right of innocent passage shall exist in those waters.
TERRITORIAL SEA AND CONTIGUOUS ZONE
Territorial Sea – Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention. It is a part of the territory of the Coastal State but it differs from the internal waters. Foreign flag vessels have a right of innocent passage through it. This right can be suspended for security reasons like weapon exercise. Under such conditions, navigation warnings must be transmitted and this can only be
temporary.
Contiguous Zone – It is a zone which is contiguous with the territorial sea and which may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. In a contiguous zone, the coastal State may exercise the control necessary to:
a) Prevent violation of its customs, immigration, fiscal (monetary) or sanitary laws and regulations within its territory or territorial sea;
b) Punish violation of the above laws and regulations committed within its territory or territorial sea.
EXCLUSIVE ECONOMIC ZONE
It is an area beyond and adjacent to the territorial sea, the breadth of which shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
In the EEZ, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, living or non-living, of the waters of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as production of energy from the water, currents and winds.
The Coastal State also has the right to establish and use artificial islands, installations and structures, marine scientific research and protection and preservation of the marine environment.
In simple terms, the Coastal State has the sole right to exploit the natural resources within its EEZ. Increasing disputes over fishing rights and oil reserves were the main reasons for introducing the EEZ in UNCLOS.
Navigation in EEZ is free as on ‘high seas’ however it may be restricted near offshore installations. If no EEZ has been declared, then ‘high seas’ start where the territorial sea ends.
CONTINENTAL SHELF
The Continental Shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 NM from the baselines from which the breadth of the territorial sea is measured, where the outer edge of the continental margin does not extend up to that distance.
The Continental margin comprises the submerged prolongation of the land mass of the coastal State and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep water floor with its oceanic ridges or the subsoil thereof.
Continental Shelf may extend well beyond 200 NM from the base line upto a maximum of 350 NM as it depends on the topography and depth of the ocean bed in that area.
It does not form a territory of the coastal State. It is a resource zone where the coastal State may use it for natural resources like mineral oil.
The Coastal State can build and maintain / operate artificial islands or oil rigs for exploration of this zone. It will exercise exclusive jurisdiction over customs, financial, health, safety and immigration laws over these artificial islands.
Safety zones of not more than 500m around the installations will be marked for safety of navigation around these installations.
ARCHIPELAGIC WATERS
These are waters which have been given special status by UNCLOS due to their natural resources, but this status is only applicable for ‘mid-ocean’ states, having one or more archipelago. E.g. Figi, Lakshwadeep, etc.
‘Archipelagic State’ means a State constituted wholly by one or more archipelagos and may include other islands. ‘Archipelago’ means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated they form an intrinsic geographical, economic and political entity.
They are considered same as the territorial sea of a nation with respect to power of the Coastal State. But the coastal State has additional duties regarding access to fishing grounds and other legal activities, like laying, maintenance of submarine cables.
To include the natural flora and fauna in these waters, the baseline may be extended thus including the internal waters of the archipelago state.
Foreign flag vessels have right to innocent passage through archipelagic waters.
FISHERIES ZONES
The traditional fisheries zone called the ‘Inland fishery zone’ can extend upto 12 NM from the baseline. However, as per UNCLOS, this can extend upto 200 NM in which a coastal State may exercise exclusive fishing rights (EFZ – Extended Fishing Zone) Vessels entering the Extended Fishing zone must observe local fishing regulations in force.
RIGHT TO INNOCENT PASSAGE:
Under UNCLOS, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.
Passage means navigation through the territorial sea for the purpose of:
a) Traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
b) Proceeding to or from internal waters or a call at such roadstead or port facility.
Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, required for ordinary navigation or necessary by force majeure (emergency) or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
Innocent Passage is the passage that is not prejudicial (harmful) to the peace, good order or security of the coastal State. Such passage shall take place in conformity with the Convention and with other rules of
international law. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if, in the territorial sea, it engages in any of the following activities:
- any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State.
- any exercise or practice with weapons of any kind
- any act aimed at collecting information to the prejudice of the defense or security of the coastal State any act of propaganda aimed at affecting the defense or security of the
coastal State - the launching, landing or taking on board of any aircraft
- the launching, landing or taking on board of any military device
- the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
- any act of willful and serious pollution contrary to the Convention
- any fishing activities
- carrying out of research or survey activities
- any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State
- any other activity not having a direct bearing on passage.
(NOTE: In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag.)
Laws and regulations of the coastal State relating to innocent passage
The coastal State may adopt laws and regulations, in conformity with the provisions of the Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
- The safety of navigation and the regulation of maritime traffic;
- The protection of navigational aids and other facilities or installations
- The protection of cables and pipelines;
- The conservation of the living resources of the sea
- The prevention of violation of the fisheries laws and regulations
- The preservation of environment and prevention & control of pollution
- Marine scientific research and hydrographic surveys
- The prevention of violation of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
Such laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships.
The coastal State shall give due publicity to all such laws and regulations.
Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to prevention of collisions at sea.
Duties of the Coastal State –
- The coastal State shall not hamper the innocent passage of a foreign flag ship in its territorial waters.
- The coastal State shall not impose any requirements on foreign flag ships which have a practical effect of denying or impairing the right of innocent passage.
- The coastal State shall not discriminate against the ships of any particular State or against ships carrying particular cargoes to or from any State.
- The coastal State shall broadcast information on any danger to navigation, of which it is aware, within its territorial sea.
Rights of the Coastal State –
The coastal State may, where necessary, require foreign ships exercising the right of innocent passage through its territorial sea to use designated sea lanes and traffic separation schemes. In particular, tankers and nuclear ships may be required to confine their passage to such sea lanes. Such sea lanes and traffic separation schemes must be clearly indicated on the charts.
The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent or to prevent any breach of laws and regulations of the Coastal State.
The coastal State may suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships, if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.
INTERNATIONAL STRAITS & RIGHT OF TRANSIT PASSAGE
The international straits are those narrow waterways which are used for international navigation between one part of the high seas or an EEZ and another part of the high seas or an EEZ.
All ships and aircrafts enjoy the right of transit passage through the international straits, which shall not be impeded subject to the conditions provided in the Convention.
Transit passage is the exercise of the freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an EEZ to another part of the high seas or an EEZ.
The requirement of continuous and expeditious transit does not exclude ships entering, leaving or returning from a State along the border of the strait.
Ships while exercising the right of transit passage, shall:
- Proceed through the strait without delay
- Not use any threat or force against the sovereignty, territorial integrity or political independence of States bordering the strait
- Not indulge in any activities other than those needed for their normal modes of continuous and expeditious transit unless rendered necessary by force majeure (emergency) or by distress
- Comply with other relevant provisions of the UNCLOS.
- Comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea
- Comply with generally accepted international regulations, procedures and practices for prevention, reduction & control of pollution from ships.
(NOTE: During transit passage, foreign ships, including marine scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits.)
Duties of States bordering straits:
- Not hamper the transit passage of a ship
- Broadcast information on any danger to navigation or over-flight within or over the strait of which they are aware of.
- There shall be no suspension of transit passage.
- Where required for safe navigation and safe passage of ships, designate sea lanes and traffic separation schemes in the straits. This must be clearly indicated on the charts to which due publicity shall be given.
HIGH SEAS & FREEDOM OF THE HIGH SEAS
Under UNCLOS, ‘high seas’ refers to all parts of the sea that are not included in the exclusive economic zone, territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.
The Convention declares the high seas open to all States, whether coastal or land-locked.
Freedom of the high seas can be exercised under the conditions laid down by the Convention and by other rules of international law. The freedom of the high seas comprises of –
- Freedom of navigation
- Freedom of over-flight
- Freedom to lay submarine cables and pipelines
- Freedom of fishing
- Freedom of scientific research
- Freedom to construct artificial islands and other installations
The above listed are subject to conditions of the relevant parts of the Convention and other international law.
RIGHT TO HOT PURSUIT
The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.
Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted.
It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the
contiguous zone.
If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights, for the protection of which, the zone was established.
The right of hot pursuit shall apply to violations in the EEZ or on the continental shelf, including safety zones around continental shelf installations.
The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State.
Hot pursuit is not deemed to have begun unless the pursuing ship confirmed that the ship pursued or one of its boats is within the territorial sea / contiguous zone or EEZ or above the continental shelf. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.
The right of hot pursuit may be exercised only by warships or military aircraft, or other ships authorized for such a purpose.
Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.
RIGHTS AND DUTIES OF COASTAL STATE OVER HER TERRITORIAL WATERS
In territorial waters, coastal states can only exercise criminal jurisdiction in the following circumstances:
- If the result of the crime extended to the coastal state.
- If a crime disturbs the peace and good order of the country.
- On the request of Master or agent of the vessel.
- To suppress illicit traffic of drugs.
The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. Civil Jurisdiction can only be exercised within territorial seas, on vessels which are passing through territorial seas after leaving the coastal state internal water.
The coastal State may adopt laws and regulations, in conformity with the provisions of UNCLOS and other rules of international law, relating to innocent passage through the territorial sea. The coastal State shall give due publicity to all such laws and regulations. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations. The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.
The coastal State may, where adopt sea lanes and TSS in its territorial waters as necessary, having regard to the safety of navigation and require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and TSS. In particular, tankers, nuclear ships or other ships carrying dangerous goods may be required to confine their passage to such sea lanes. The coastal State shall clearly indicate such sea lanes and TSS on charts to which due publicity shall be given.
The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea. They shall not impose requirements that have a practical effect of denying the right of innocent passage. They shall not discriminate among ships in any way.
The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.
RIGHTS AND DUTIES OF COASTAL STATE OVER HER CONTIGUOUS ZONE:
In the contiguous zone, the Coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
In the contiguous zone, the Coastal State can punish infringement of the above laws and regulations committed within its territory or territorial sea.
RIGHTS AND DUTIES OF COASTAL STATE OVER HER EEZ:
In the exclusive economic zone, the coastal State has sovereign rights for the following:
- Exploring and exploiting the natural resources,
- Conserving and managing the natural resources,
- Other activities for the economic exploitation, such as production of energy from water, currents and winds.
- Activities for exploration of the zone.
- Establishment and use of artificial islands, installations and structures.
- Carry out marine scientific research.
- Take steps for the protection and preservation of the marine environment.
Due notice must be given of the construction of artificial islands, installations or structures, and permanent means for giving warning of their presence must be maintained.
The coastal State may, where necessary, establish reasonable safety zones around such artificial islands, installations and structures for their safety and for safety of navigation. (not more than 500 m around them)
Coastal states may have set forth fishery laws and carry out licensing of fishermen, their boats and equipments. They can also set penalties for violations of fisheries laws and regulations in the exclusive economic zone.
RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF
The coastal State exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.
These rights are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.
The natural resources referred above consist of the mineral and other living and non-living resources of the seabed and subsoil.
The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.
PIRACY UNDER UNCLOS:
All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
Piracy consists of any of the following acts:
- Damage committed for private ends by the crew or the passengers of a private ship or a private aircraft on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.
- Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
- Any act of provoking or of intentionally facilitating any of the acts described above.
A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the above acts of piracy.
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.
If the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable for any loss or damage caused by the seizure.
A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft authorized to that effect.
SCOPE AND OBJECTIVES OF UNCLOS:
UNCLOS was established to provide an international agreement regulating the various uses of the world’s oceans and seas and to define the rights and responsibilities of nations therein.
The scope of the Convention is very broad and provides what has been termed a ‘constitution for the oceans’, covering the utilization of resources, shipping, marine research, the exploitation of the EEZ and continental shelf, and the prevention and avoidance of marine pollution.
The Convention contains broad principles and provisions, allowing its Contracting Parties to create more precise national regulations with regard to the marine environment.
The sea is in effect divided into different zones and areas, with differing rights and duties applying to each separate sector.