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United Nations Convention on the Law of the Sea (UNCLOS)
- UNCLOS lays down a comprehensive regime of law and order in the world’s oceans and seas.
- The 1982 convention was signed by 117 states and it establishes rules governing all uses of the ocean and its resources.
- The convention also provides the framework for the development of a specific area of law of the sea.
- The convention is a lengthy document having 446 articles group in 7 parts in 9 annexes.
- UNCLOS came into force internationally on 16th Nov 1994.
As otherwise provided in the UNCLOS convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.
Objectives of the UNCLOS
- To promote the peaceful use of the seas and oceans;
- To facilitate International Communications;
- To enable equitable and efficient utilisation of ocean resources;
- To protect and preserve the marine environment;
- To promote Maritime safety.
The 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 the baseline determined in accordance with this convention.
The outer limit of the territorial sea is the line every point of which is at a distance from the baseline equal to the breadth of the territorial sea.
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.
Features of Territorial Sea
- The foreign flag would have a right to innocent passage through the territorial waters.
- An innocent passage can be suspended temporarily in specified areas for the coastal States security or to conduct a weapon exercise.
- Criminal jurisdiction can be exercised by the coastal state on foreign flag vessels in a territorial sea.
- Civil jurisdiction can only be exercised if the vessel is passing through the territorial sea after leaving the internal waters.
- Transit passage is allowed for Ship through the state.
- States may enact legislation concerning the safety of navigation, pollution prevention, uncontrolled fishing activities, customs, immigration, health and sanitary arrangements.
Contiguous zone generally extends 12 nautical miles beyond the territorial sea limit. It consists of a combination of Revenue and Public health or Quarantine jurisdiction.
The coastal state can prejudice a foreign flag vessel beyond the territorial see if there are reasonable grounds for assuming they are about to violate Customs or Public Health Regulations
Exclusive economic zone (EEZ)
The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
In an Exclusive Economic Zone, the coastal state has the following rights:
- Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.
- Can enact regulations on pollution and environmental protection.
- Has exclusive right to construct artificial islands and security zones.
- Has exclusive right to fishing and development of fish farms.
- Can conduct scientific research and marine exploration.
The obligation of vessels in an exclusive economic zone:
- Freedom of navigation as in high seas.
- Lay submarine cable/pipeline that is passing through EEZ.
- Observe Pollution regulations as per the coastal state regulations.
- Fishing gear if carried must be stored/secured condition. No fishing allowed.
- Respect and comply with the security zones of the offshore installations, artificial islands of the coastal state.
The Continental shelf of a coastal state comprises of 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 200nm from the baseline. Almost everywhere the shelves represent simply a continuation of the continental landmass beneath the ocean margins.
A coastal state shall establish the outer edge of the continental margin wherever it extends 200 Nautical Miles by procedures mentioned in this article.
The outer limit of the continental shelf shall not exceed 350 nautical miles from the baseline, from which the breadth of the territory is measured.
- High Seas represents all that sea area which is not capable of forming part of any sovereign state and are not included in the Exclusive Economic Zone, the territorial waters or internal waters of a coastal state or the archipelagic waters o the Archipelagic state.
- The High Seas are open to all states whether coastal or landlocked.
- Freedom on the high seas is exercised under the conditions laid down by the convention and by other rules.
Under high Seas for both coastal and landlocked States:
- Freedom of navigation.
- Freedom of overflight.
- Freedom of laying submarine cables and pipelines.
- Freedom to construct artificial islands and other installations permitted under international law.
- Freedom of fishing, subject to the conditions.
- Freedom of scientific research.
The high seas shall be reserved for peaceful purposes.
Right to Innocent Passage
Ships of all states whether coastal or landlocked enjoy the right of innocent passage through the territorial waters.
Passage means navigation through the territorial sea for the purpose of:
- traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
- 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, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
Salient features of the Innocent Passage
1. A passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. 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:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device;
(g) 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;
(h) any act of willful and serious pollution contrary to this Convention;
(i) any fishing activities;
(j) the carrying out of research or survey activities;
(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;
(l) any other activity not having a direct bearing on passage.
Right to Transit Passage (Strait Passage)
This applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
1. In straits, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.
2. Transit passage means the exercise in of the freedom of navigation and overflight solely for the purpose of a continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.
3. Any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of UNCLOS.
Duties of Ships and Aircraft during Transit
1. Ships and aircraft, while exercising the right of transit passage, shall:
- proceed without delay through or over the strait;
- refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;
- refrain from any activities other than those incidents to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress;
- comply with other relevant provisions of this Part.
2. Ships in transit passage shall:
- 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 the prevention, reduction and control of pollution from ships.
3. Aircraft in transit passage shall:
- observe the Rules of the Air established by the International Civil Aviation Organization as they apply to civil aircraft; state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation;
- at all times monitor the radio frequency assigned by the competent internationally designated air traffic control authority or the appropriate international distress radio frequency.
Right of Unimpeded Transit Passage
An unimpeded transit passage is freedom of navigation or passage solely for the purpose of transiting a strait connecting one area of a High Seas to another are of High Seas (or EEZ to EEZ).
This does not preclude passage through the strait for the purpose of entering a port or coastal state bordering the strait subject to conditions of entry of that state.
Difference between Right to Innocent Passage and Right to Unimpeded Transit Passage
|Right to Innocent Passage||Right to Unimpeded Transit Passage|
|1. may be suspended by the coastal state on account of its own security.||1. can never be suspended in times of peace or war.|
|2. submarines transiting territorial waters have to do so on the surface and show their flag.||2. submarines may transit submerged and no need to show their flag.|
|3. warships transiting the territorial waters of another state may be subject to provisions of prior notification or permission.||3. No such thing applies within straits.|
|4. does not apply to airspace above it.||4. right to passage for aircraft using airspace over it.|
Archipelagic States and Archipelagic Waters
An “archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands. It is a designation used for island countries, in which “archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.
- Archipelagic baselines determine the breadth of the territorial sea, contiguous zone and EEZ for a given archipelagic state.
- These waters are given special status by UNCLOS on account of their natural resources, but the status is applicable only for mid-ocean states having more than one or more archipelago.
- The sovereignty of an archipelagic state extends to the waters enclosed by the archipelagic baseline and are described as archipelagic waters, regardless of their depth or distance from the coast.
- This sovereignty extends to the airspace above and the subsoil below archipelagic waters.
- Ships of all states enjoy the right of innocent passage through archipelagic waters.
- An archipelagic state may suspend this innocent passage if this is essential for the protection of its security, such suspension shall take effect only after being duly published.
Duties of Flag State under UNCLOS
When a State assumes legal authority over a ship by grant of its flag, the State also assumes a certain obligation to take measures to ensure that the vessel, viewed both as an instrument of navigation and a collective of ship-users, acts in a fashion consistent with international law.
- Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
- In particular, every State shall:
- maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and
- assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.
- Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regards, inter alia, to :
- the construction, equipment and seaworthiness of ships;
- the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; the use of signals, the maintenance of communications and the prevention of collisions.
- Such measures shall include those necessary to ensure
- that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship
- that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;
- that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio.
- In taking the measures each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.
- A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.
- Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”
Rights and Duties of a Coastal State
Innocent Passage of a Vessel (Territorial Waters)
- The coastal State may adopt laws and regulations, in conformity with the provisions of this 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 facilities and other facilities or installations;
- the protection of cables and pipelines;
- the conservation of the living resources of the sea;
- the prevention of infringement of the fisheries laws and regulations of the coastal State;
- the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
- marine scientific research and hydrographic surveys;
- the prevention of infringement 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 unless they are giving effect to generally accepted international rules or standards.
- 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 the prevention of collisions at sea.
In a zone contiguous to its territorial sea, described as 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;
- punish infringement of the above laws and regulations committed within its territory or territorial sea.
- Vessels which infringe these laws may be detained by the state within this zone.
- Foreign vessels have a right to innocent passage.
Exclusive Economic Zone
In the exclusive economic zone, the coastal State has:
- Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
- Jurisdiction as provided for in the relevant provisions of this Convention with regard to:
- the establishment and use of artificial islands, installations and structures;
- marine scientific research;
- the protection and preservation of the marine environment;
- The coastal state may extend their jurisdiction if necessary to ensure compliance with laws and regulations adopted by it.
In the Continental Shelf, the coastal State can:
1. Exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
2. 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.
3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
4. All states are entitled to lay Submarine Cables and pipelines on the continental shelf. Coastal states may not impede the laying or maintenance of such cables or pipelines.
Piracy as per UNCLOS
- Piracy is defined as any illegal acts of violence or detention, or any act of depredation committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed:
- on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
- against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
- 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 inciting or of intentionally facilitating an act 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 acts referred above. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.
A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.
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. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
All States shall cooperate to the fullest possible extent for repression of piracy on the high seas or in another place outside the jurisdiction of any state.
Where 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 to the State the nationality of which is possessed by the ship or aircraft 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 clearly marked and identifiable as being on government service and authorized to that effect.
All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions.
All States shall cooperate in the suppression of unauthorized broadcasting from the high seas.
Right of 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 mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations, of the laws and regulations of the coastal State applicable in accordance with this Convention to the exclusive economic zone or the continental shelf, including such safety zones.
- 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.