Abstract
Historically, the seas have always been an arena of dispute over territorial jurisdictions, claims over mineral resources, fisheries, exploration etc. The United Nations Convention on the Law of the Sea aims to establish a comprehensive international legal framework to govern and regulate the global waters. However, the UNCLOS does not provide answers to all problems and confusion that arises in practice. As for India, the regime envisioned under the Convention poses certain limitations on India’s economic growth and maritime sovereignty. India must take advantage of its regional and international stature in the ongoing dynamics of the global balance of power. India must create a national legislative framework that upholds its needs for maritime security and strengthens its position as a defender of international law in order to foster genuine cooperative efforts in maritime security. The paper aims to uncover the challenges posed by UNCLOS over India’s global ambitions and tries to formulate policy solutions to counter the same.
Keywords: Law of the Sea, UNCLOS, India, Exclusive Economic Zone, Maritime Security, Indian Ocean Region
Introduction
In our global history, the seas and global waters have played a prominent role in transportation and communication of goods, ideas and cultures. Ideally, the navigation in global waters was considered universal and a tacit freedom was accorded to the uninterrupted movement in the high seas. However, as there came to be advances in maritime technology, increases in maritime trade, and the growing economic value of offshore energy and living resources have collectively led to a paradigm shift in the centuries-old division of the ocean between three-mile territorial seas under coastal state authority and the high seas, where freedom of navigation and exploitation typically reigned. As time progressed, the coastal states’ claims over oceanic resources grew and so the formidable 1982 UN Convention on the Law of the Sea (UNCLOS) established a new comprehensive oceanic order and an international legal framework that offered the stability required to preserve the maritime environment, support trade and development, maintain national security, and defend sovereignty. It resolved the long-standing debates on the state’s maritime claims and paved the way for new developments.
Law of the sea is as old as nations, and the modern law of the sea is virtually as old as modern international law. For three hundred years it was probably the most stable and least controversial branch of international law. The standards governing the rights and responsibilities of States in the maritime environment make up the complex and multifaceted field of law known as the law of the sea. UNCLOS is frequently recognised and qualified as a “constitution for the oceans”. In addition to highlighting a fundamental aspect of that international treaty on the law of the sea, it establishes an assumption that any activity in the seas and oceans is governed, in whole or in part, by the UNCLOS and that any future regulations that may be negotiated and adopted must be compliant with it.
The comprehensive nature of the Convention reflects the idea that all issues pertaining to the law of the sea are interconnected. The UNCLOS divides the sea into zones and thus specifies the rights and duties of the States. Simultaneously, it also provides for the establishment of a Seabed Authority, regulates the protection and preservation of the marine environment, and sets out the rules governing marine research. It has also created multiple institutions to handle joint responsibility for managing mineral resources outside national borders as well as establishing the bounds of national jurisdiction.
It also offers other dispute resolution procedures, with mandated dispute settlement for certain circumstances. UNCLOS established the International Tribunal for the Law of the Sea (ITLOS), composed of 21 independent members, to adjudicate disputes arising out of the interpretation or application of UNCLOS. The Law of the Sea is particularly important in the Indian Ocean and the South China Sea, where overlapping claims of sovereignty have given way to considerable stress on the international legal regime.
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