Question
The oceans have long served a military purpose in society dating back to the times of the Egyptian Dynasties. Recently, the UN’s adoption of the comprehensive convention on the Law of the Sea has codified laws to protect marine and maritime activities. Accordingly, the convention has presented new challenges through constraints on military usage whilst also providing rights and protection for nations under UN conventions. It is therefore evident, that now more than ever, the Military use of oceans is subjugated and controlled by the UN Convention of Law of the sea and therefore impacts the investments, territorial conflicts, and political interests of nations across the globe. It is therefore in a countries best interest provided under the UN convention of the Law of the sea to protect their military and commercial power. Evidently, this can be only achieved through effective and coordinated military use of the ocean as per the UN convention of the law of the sea.
Answer
Analysis of the reliance, constraints, purpose, and rights for countries under the United Nations Convention on the Law of the Sea regarding the Military use of the Oceans
The law of the sea is simultaneously known for being the oldest and the newest body of international law. The debates around the use and control of the waters began to post their use for commerce or war by the merchants, politicians etc. The freedom concerning the oceans has taken numerous forms, be it limitations on the rights and jurisdiction of the states in the 17th century aboutthe use of the sea to a specific belt of water.
The territorial waters of a country extended up to the limit a shore battery could fire, for a couple of years, beyond which the seas were considered ‘free seas’ or ‘the international waters’ as in the opinion of Hugo Grotius, the seas being accessible to all nations belonged to none of them. The argument concerning ‘free seas to all’ continued for centuries. However, the small states argued for limiting the maritime powers from navigating the oceans or exploiting their resources. Therefore, these tensions in the past reflected the political or economic issues in nature for the exercise of sovereignty by state over the seas and the concept of free seas.
The beginning of the law of the sea cannot be marked by the adoption of the United Nations Convention on the Law of the Sea as until the middle of the 20th century, the law could be found in the international customary law. This international customary law was based on the freedom of the seas. A draft consisting of specific articles on the Law of the Sea in 1945 by the ILC (‘International Law Commission’). This draft was used by UNCLOS I and II in their deliberations. Even though the first and second conferences led to the adoption of certain treaties on the territorial sea, High seas,etc., the Conventions could not resolve specific significant and crucial issues about the breadth of the territorial sea.
The Convention of the Law of Seas has a binding effect on the states which are party to the said Convention and non-party states to the extent of it representing customary international law. Considering the exhaustion of marine resources, the need for conservation was discussed at the time of the Convention's creation. Even today, there is a coexistence of maritime powers in equilibrium upon mutual deterrence and not following the states who have been appropriating their powers. Different states followed the principle of customary international law about a nation's right or sovereignty to protect its natural resources and its claims over adjacent waters. As a result, certain states extended their territorial waters to 12 nautical miles and efforts were made to broaden the spectrum of law concerning the regime of sea that led to creation of the said Convention.
It is pertinent to know that the issue about military uses was a neglected one at UNCLOS III. The Convention was formulated after the need for an international regime for ocean floor beyond the national jurisdiction was felt. The military use of the ocean was neglected for issues being political or delicate. No such visible fallout about military services could be witnessed under the official record. Thus, there is a need to interpret the Convention's provisionsto understand the military uses of oceans.
The Convention consists of around 400 articles. However, the term ‘military activities’ appears only in the context of unavoidable provisions expressed therein. Further, the term is used specifically to define innocent passage justifying suspending the innocent passage, etc. Apart from this, the term ‘military use’ has been avoided under the Convention and terms like "other activities in the marine environment" or "other legitimate uses of the sea" etc.. proving that no express mention has been made of the military use. In 1982, the United Nations Convention for the Law of the Sea, was adopted as a legal framework as it set out rights and the duties of the states across the globe and parties to the Convention for the use of the world’s oceans. It can be interpreted that it aimed to provide a framework for ocean governance for the world.
As a matter of rights of the coastal states, the Convention provides a regulatory framework for such states to regulate the oceans under their jurisdiction. Here, it is pertinent to mention that the rights of coastal states must be balanced with the accessibility of resources outside the control and jurisdiction of the states, that is, the freedom of the seas. These states are permitted under the Convention's provisions for establishing various maritime zones and accordingly are provided with the rights concerning jurisdiction. However, the constraint or the challenge here is regarding the zones' beginning or ending geographical location. The term ‘baseline’ has been used under the Convention to show that maritime zones are drawn using them.[12]
Following the Convention, the oceans are divided into six zones, namely-:
a) Internal waters, which is the waters on the landward side of the baseline of the territorial sea. Speaking about the sovereignty of the coastal states, it extends beyond the territory of its land and the internal waters. It is crucial to note that sovereignty is exercised following the provisions of the Convention, which means that the state must rely upon and act by regulations of the Convention. Regarding the military use of oceans, it is essential to know about the rules applicable to ships. Following the Convention, the coastal states have a right to an innocent passage wherein the passage denotes the navigation through the territorial sea to traverse the sea without entering the internal waters, thereby proving the limitation or constraint or rather the regulation for the use of the ocean.
b) Further, mentioning the coastal states' duties include not hampering the innocent passage of foreign ships through the territorial sea. The same can be done only following the provisions of the Convention. At the same time, the coastal State's rights include taking the necessary steps in its territorial sea to prevent the passage that is not innocent. Regarding the ships proceeding to internal waters, the coastal States are empowered to take the steps essential for avoiding any breach of the conditions. For the state's security, the innocent passage of foreign ships in specific areas of the coastal states’ territorial sea can be suspended. By extending a set of rights and duties, the Convention has aimed at bringing a balance concerning the use of oceans and hence, the provisions can be relied upon.
c) Territorial Sea, wherein following the Convention's provisions, measuring from baselines, every State is empowered to establish the breadth of its territorial sea up to a limit of 12 nautical miles and not exceeding that. The sovereignty and jurisdiction on the territorial sea have been provided under the Convention, which extends to seabed and subsoil apart from the surface.
d) Contiguous Zone, here the Convention permits the state to establish such a zone from the outer edge of the territorial seas and not exceed the limit of 24 nautical miles from the baseline. Here, the states are empowered to prevent the infringement of laws and regulation of the sanitary or fiscal laws etc., within their territory and territorial sea. Further, the Convention empowers the states to punish in case of the infringement of such laws. The contiguous zones granted jurisdiction to a state-specific to the ocean's surface and floor.
e) Exclusive Economic Zone is formulated by the Convention of the Law of Seas and not derived from earlier international law like in other zones. States can claim an Exclusive Economic Zone which from the baseline extends 200 nautical miles. Under this zone, certain rights have been granted to the coastal state regarding conserving the resources found within the water, on the seafloor, or under the sea floor’s subsoil. Here, both living and non-living resources are included. The states can conduct marine scientific research and preserve the marine environment within the Convention's provisions.
f) A significant part of the Convention provides for both, among other things, the protection and preservation of the marine environment. The provisions for the high seas are also applicable to these zones. A crucial aspect of being noted here is that 38% of the earth's oceans are constituted by the Exclusive Economic Zones of the states across the world. Earlier, these were considered as a part of the high seas until the Convention was adopted. From this, the certainty of problems concerning oceans and awareness for the same can be interpreted. The Convention has struck down a balance between the interest of the coastal states in protecting their costs and the resources of their jurisdiction at one hand with the interests of the international community at large about the freedom of navigation. However, the military forces at sea are exempted from these constraints as they enjoy sovereign immunity.
g) As provided under the Convention, the Continental Shelf of a coastal State consists of the seabed and subsoil of the submarine areas. Here the seabed and the subsoil extend beyond its territorial sea throughout its land territory to the outer edge of the continental margin or from the baselines to 200 nautical miles. This distance is measured from the breadth of the territorial sea and the reach of the continental margin's outer edge does not exceed. The shelf is an extension of a land boundary that is geologically formed and consists of a gradual, steep, and more gradual slope leading to the deep seabed floor. The term continental margin used above consists of these areas which are rich in natural resources. The Convention further permits a state to conduct the activities for 200 nautical miles from the baseline. If it extends beyond 200 nautical miles, then the same is to be undertaken for a length of the continental margin. Methods, namely, the Gardiner formula and the Hedberg formula, have been provided under the Convention for measuring the continental margin. The Convention also establishes a commission, namely, Commission on the Limits of the Continental Shelf (‘CLCS’), to prevent abuse of provisions concerning the continental shelf.
h) According to the Convention, high Seas & Deep Ocean Floor means the ocean surface and the water column beyond the Exclusive Economic Zone. In the opinion of the Convention, this area is the common heritage for all mankind and is beyond the jurisdiction of any nation. The constraints concerning the use of the ocean here can be seen as it is mentioned under the provisions of the Convention that the state can conduct the activities in the prescribed area only for peaceful purposes. The term peaceful purposes mean to include marine science, undersea exploration etc. The Convention provides for freedom of the high seas, and it is open to all states, be it coastal states or land locked. However, freedom is exercised under the set of conditions of the Convention. The freedom includes,among other things, navigation, overflight, lay submarine cables and pipelines, fishing, constructing artificial islands, and scientific research.
Apart from the provisions mentioned above under the Convention concerning the oceans, their divisions, the rights, duties, constraints on the states about their use, it is essential to highlight upon the rules applicable to the warships and the other ships of the government which are operated for the non-commercial purposes, that is to mean and include military use of oceans by the states, under the Convention.Under the Convention, the term ‘warships’ means a ship that belongs to the armed forces that bear external marks to differentiate these ships based on their respective nations. The ships bear an external mark under the command of an officer which the government of a separate state duly commissions and whose name appears in the service list manned by a crew under regular armed forces discipline. The Convention mentions the non-compliance of laws and regulations of the coastal State by warships.
Non-adherence to the laws concerning the passage through the coastal State's territorial sea and any disregard for any such request of adherence on behalf of the warship permits the coastal state to require the warship to leave the territorial sea on an immediate basis. The interpretation of this provision of the Convention mentions the constraints put forth by it about the use of oceans. However, the understanding also provides that the Convention is not vague in stating the limitations upon the use of the oceans, which is for the overall protection of the resources and benefit of mankind and not restricting the use per se. The limitation is upon the use of the state for the benefit of the nations across the globe itself.
Further, the responsibility of the flag state is mentioned under the Convention in case the damage is caused by a warship that was operating for non-commercial purposes to the coastal state due to the non-compliance of the laws. The interpretation of this provision is the balance of interests created by the Convention between the use of oceans and the protection of states from damages caused due to its use without compliance to laws. Although, the provisions stated above do not impact the set of immunities granted to the warships and other ships of the governments of respective nations which are operated for non-commercial purposes.
As discussed in the research essay, all the provisions of the Convention prove the prime point of concern for the said Convention is to establish and formulate a system for governing oceans. To this end, the formulation of a legal framework for the oceans to protect and preserve the marine environment can be seen. For instance, by taking conservation measures, the coastal statesmust ensure that living resources are not endangered in the exclusive economic zone due to overexploitation. Further, regarding the high seas, the states are required by the Convention to formulate such conservation measures for the living resources and these measures shall be prepared to restore populations of harvested species at such levels where the maximum sustainable yield can be produced. The responsibility is also shouldered upon the International Seabed Authority by the Convention for the overall protection of the marine environment from activities harmful tothe seabed. This, in a way, is the power bestowed with authority for protecting seabed beyond the national jurisdiction of the nations. The effectiveness of the Convention about serving as “the constitution of the oceans”is questioned again despite the set of provisions laid down for the protection of the environment. The Convention has been criticized by many like Redgwell for having gaps in the regulation of activities. In the researcher's opinion, the provisions for protectingthe marine environment balance with the economic interests. To prove the same, an instance can be taken wherein the Convention provides states the right to exploit their natural resources in pursuance of the policies of the environment and accords the duty to preserve the environment. The provision is in line with the Rio Declaration.
By interpreting the provisions, it can be said that certain states' refusal to recognize the provisions of the Convention as the legislative framework to govern the oceans has been the reason behind the challenges or obstacles behind the smooth functioning and questioning of provisions for the military use of oceans. Nations themselves impose the constraints in a way. While criticizing the Convention, it is crucial to understand what its provisions claim and do not claim to cover. The provisions aim to formulate a legal order for oceans and establish a Constitutional framework for governing the use of oceans. The same can be understood by considering the Constitution of any nation, that is, under a domestic legal system, which creates a structural framework for the country to be governed. In this manner, the Convention upholds a status of supremacy for itself. But not every aspect of the oceans is regulated with the same intensity under the Convention's provisions as not all details can be covered referring to the intricacies involved in doing the same. The Convention makes allowances for the development of law of seas by adopting various other treaties, norms, and soft law. With this, the reliance upon the Convention and its ambiguity to a certain extent has been answered.
To sum up, the rapid expansion of claims of sovereignty by the coastal states over the ocean space and the repercussions of these claims of jurisdiction on the freedom of seas has been the significantreason for convening the Convention, that us, UNCLOS III. Significantconstraints have earlier been due to the disintegration of a traditional system of ocean law that allowed the increasing encroachment by the coastal states on the seas. Thus, a comprehensive convention on the law of the sea provides for the formulation of provisions having universal applicability and being free of conflicts regarding the use of oceans of the world and the resources therein. This framework, if universally applied, in utilising the resources and the oceans through military means, can prove compellingenough in providing a balance of freedoms and restrictions for providing a sustainable framework to the nations across the globe in using the oceans via military means.