LAW OF THE SEA IN

GLOBALIZING WORLD

AYONIJA SHANKHDHAR

LLM- IMSL&G

ENROLLMENT NO. RSU2031001

RASHTRIYA RAKSHA UNIVERSITY

(AN INSTITUTION OF NATIONAL IMPORTANCE)

Abstract

This research paper aims at determining on how Law of the Sea is bringing Justice in
Globalizing World by governing rights and duties of states in maritime environments. The Law
of the Sea is a comprehensive treaty covering various facets of ocean management and it is
attempted to address the existing conflicts over the oceans with respect to territorial sea limits,
navigational rights, the legal status of the ocean’s resources economic jurisdictions and
protection of marine environment. Sea, is now being described as central space for maritime
security including as a stage for geopolitical power projection, interstate warfare or militarized
disputes, as a connector between states that enables various phenomenon from colonialism to
globalization and a source of specific threats such as piracy, human trafficking, or smuggling
components of weapons of mass destruction. Therefore, this paper would throw light upon
various facets of maritime security challenges in the globalizing world. It would also address
contemporary issues pertaining to The Law of the Sea, such as destruction of marine
environment and biodiversity, marine shipping and pollution. The significance of the research
paper is to highlight the principle of Justice in globalizing world through the implementation
of Law of the Sea in ocean governance. It would also highlight India’s position on Law of the
Sea. The legal principles described in this paper would pave the way for new legislations,
sometimes in familiar contexts and at other times arising out of new and unanticipated
developments. The research methodology adopted is doctrinal as well as non-doctrinal based
on primary and secondary sources of data.

Keywords – Law of the Sea (UNCLOS), Maritime Security, Globalization, Justice,

Territorial Sea, Exclusive Economic Zone (EEZ), Continental Shelf, Contiguous Zone.
Chapter 1

Introduction

Globalization has caused interaction and integration among people, companies and
governments worldwide. It has accelerated since the 18th century thanks to advancement in
transportation and communication technology. The increase in global interactions has caused
a growth in international trade and the exchange of ideas and culture. 1It is associated with
social and cultural aspects too. With the advent of it there has been several environmental
challenges such as global warming, cross-boundary water and air pollution, and over fishing.
To face the outcomes of globalization and to regulate it efficiently a vast network of
international law and dozens of international organizations is the need of the hour. The scope
and authority of law of nations have thus expanded dramatically during the age of globalization.
Earlier, it addressed only relations between states in certain areas like war and diplomacy and
was inclined to sovereignty and territorial boundaries of various countries. But now its stance
has been completely changed, for example international law has become a vehicle for states to
cooperate regarding new areas of international relations such as environment and human rights.
Because of the necessity for enhanced international cooperation, globalization has therefore
given new meanings to classic issues. One such issue was that pertaining to the ocean
governance. Till 17th century, oceans had been subjected to the freedom of the seas doctrine
which was gradually taking the toll on coastal fish stocks by long distance fishing fleets and
over the threat of pollution and wastes from transport vessels and oil tankers carrying noxious
cargoes that piled sea routes across the world. This threat always remained in coastal areas for
all forms of ocean life. The navies of the maritime powers were competing for a worldwide
dominance in surface waters and even under the ocean. To resolve such disputes, United
Nations Law of the Sea Convention (UNCLOS) was framed that was signed by 168 parties.
There are also various consequences attached with globalization, as it connects people, it also
raises responsibilities between them. It has become indispensable to debate social ethics during
a global context and to develop principles of worldwide justice. It, therefore entails an
assessment of the benefits and burdens of structural relations and institutional arrangements
that constitute and govern globalization, such as United Nations. United Nations has thus
formulated the legal and institutional framework governing ocean affairs and law of the sea,
namely, environmental conservation and protection of marine resources, development and

1 Globalization, Globalization - Wikipedia

protection of the resources of the area and sustainable development of developing and least
developed states, as United Nations Law of the Sea Convention (UNCLOS).

Chapter 2

A. History of Law of the Sea

From the time the seas began to be used for the conduct of commerce and war, politicians,
merchants have been debating who could use the sea and who could control it. Freedom of seas
has taken many forms over the centuries. From the 17 th century, a State’s rights and jurisdiction
on the ocean were limited to a specific belt of water extending from the coastlines. For many
years, a country’s territorial waters extended as far as a shore battery could fire, and all waters
beyond this were considered international waters or free seas (mare liberum). As described by
Hugo Grotius, the seas “were free to all nations but belonged to none of them.2

The tensions between “the free sea” and “the closed sea” waned for centuries, powerful arguing
that the sea was free for all, and the smaller states wanting for transnational limitations as the
feared that the maritime powers could navigate the oceans and exploits its resources. Political,
strategic, and economic issues constituted as historical tension between the exercise of state
sovereignty over the sea and the idea of the free sea. By the 19th century the concept of the free
seas, was the prevalent view, maritime powers being the dominant in it, Great Britain in
particular, thus fostering a body of law that favored free navigation and the conduct of both
commerce and naval operations across the world’s oceans. 3

2 John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack Whitacre, eds., “History of
Law of the Sea,” in “Customary International Law and the adoption of the Law of the Sea Convention,” in Law
of the Sea, A Policy Primer (Massachusetts: The Fletcher School of Law and Diplomacy, Tufts University,2017).
3 John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack Whitacre, eds., “History of

Law of the Sea,” in “Customary International Law and the adoption of the Law of the Sea Convention,” in Law
of the Sea, A Policy Primer (Massachusetts: The Fletcher School of Law and Diplomacy, Tufts University,2017).
B. Development of The United Nations Convention on the Law of the Sea
(UNCLOS)

Customary international laws and in recent years, treaty law, have played a central and
continuing role in the evolution of the law of the sea. The convention is the cumulative result
of decades of diplomacy and based on centuries of relevant practice and jurisprudence. In
1960s, issues of geopolitics and nationalism arose, in addition to interest in oceanic resources,
amplifies the desire of states to assert sovereign rights over larger areas of ocean. All of these
trends lead to the adherence of principles of customary law of the sea to a changing world
environment.

In the first and second conferences on the Law of the Sea, four treaties were made namely: The
Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental
Shelf, the Convention on the High Seas, and the Convention on Fishing and Conservation of
Living Resources of the High Seas. In the third Conference on the Law of the Sea, the
unanswered issue of territorial waters was addressed. Issues pertaining to the deep sea and the
seabed as the legacy of all humans were also taken up. For nine years States negotiated over
the parameters of the law of the sea until the Convention was completed in 1982 and came into
force in 1994. It is followed by the vast majority of the States of the world, it provides the only
framework within international law for resolving contentious disputes such as freedom of
navigation, fishing rights and the scope and boundaries of maritime zones. 4

Chapter 3

Law of the Sea vis-à-vis Justice in Globalizing World

Justice is achieved by the free and fair distribution of rights and burden amongst everyone.
This can only be attained through a legal framework. Law of the Sea is one such means through
which justice may be obtained in this developing maritime area. Living beings may be able to
exercise their rights and fulfill their duties only when they are secure and free from fear of
external threats and dangers. Hence, Law of the Sea provide safeguards in the area of maritime
security as well.

4John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack Whitacre, eds., “First,
Second and Third Conferences on Law of the Sea,” in “Customary International Law and the adoption of the Law
of the Sea Convention,” in Law of the Sea, A Policy Primer (Massachusetts: The Fletcher School of Law and
Diplomacy, Tufts University,2017).
International Law of the Sea settles the disputes pertaining to maritime boundaries of maritime
zones at global level between or among states. It also defines rights and duties of various coastal
states in these maritime zones with regards to conservation of marine environment and
biodiversity. It has also resolved issue with respect to the position of sovereignty of states and
ocean uses by various states.

• UNCLOS on rights, duties and jurisdiction of coastal states - UNCLOS focusses on

the rights of coastal states to regulate and exploit the areas under their jurisdiction.
There has to be a balance between rights of coastal states and rights of navigation and
access to resources outside the state control. To demarcate such balances UNCLOS has
permitted coastal states to establish different maritime zones. However, the main
challenge lies pertaining to the geographical variations, especially where the zones end
and new zones begin. Ocean is divided into six different zones:
1. Internal Waters are all the waters which is towards the land from the baseline,
such as lakes, rivers, and tidewaters. All the states have sovereign jurisdiction over
it.
2. Territorial Sea extends to 12 nautical miles from the baseline. States have the
jurisdiction over it. The rights extend to seabed, sub soil, and vertically to airspace.
However, exclusive jurisdiction of states is subject to passage rights of other states
as well.
3. Contiguous Zone extends to 24 nautical miles from the baseline. Here, the state
has the right to prevent the infringement of fiscal, immigration, sanitary, and
customs laws within its territory and in territorial sea also.
4. Exclusive Economic Zone extends to 200 nautical miles from the baseline. Here,
a coastal state has the exclusive right to exploit or conserve resources. Article 56 of
UNCLOS also allows creation of artificial islands, installations and structures,
conduct marine scientific research, and protect and preserve the marine
environment through marine protected areas. States cannot limit or prohibit
navigation or overflight by other states, although certain exceptions are attached
with it.5

5John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack Whitacre, eds., “Exclusive
Economic Zones,” in “Maritime Zones,” in Law of the Sea, A Policy Primer (Massachusetts: The Fletcher School
of Law and Diplomacy, Tufts University,2017).
 5. Continental Shelf is a seaward extension of a land boundary. The economic rights
extend to only non-living resources and sedentary living resources. Artificial
islands, structures can be built here. Other states may harvest non sedentary living
resources, lay submarine cables and pipelines, and conduct marine research. State
is not granted with right to restrict navigation. 6
6. High Seas is the ocean surface and water column beyond the Exclusive Economic
Zone. UNCLOS considers that area “the common heritage of all mankind” and is
beyond national jurisdiction. Any activity can be conducted so long as they are for
peaceful purposes.

• UNCLOS on rights and duties of other states within Exclusive Economic Zone
(EEZ) of a coastal state – Article 87 of UNCLOS provides that the high seas are open
to all states, including freedom of navigation and overflight. Article 58 recognizes that
all the states enjoy within the EEZ “the freedoms referred to in Article 87 of navigation
and overflight and of the laying submarine cables and pipelines, and other
internationally lawful uses of the sea related to these freedoms, such as those associated
with the operation of ships, aircraft and submarine cables and pipelines, and compatible
with the other provisions of this Convention.” Article 86 of UNCLOS reinstates the
interpretation of Article 58. Article 301 requires states to “refrain from any threat or
use of force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the principles of international law embodies in the
Charter of the United Nations.”7 It also applies to EEZs. Military activities conducted
by States are considered lawful within the EEZs of other States

• UNCLOS on Sovereign Immunity- In international law, one sovereign state cannot

impose its authority over another sovereign state and is considered that all States stand
at an equal footing, which is known as sovereign immunity. There are two ways in
which sovereign immunity is exercised: jurisdictional immunity against the
adjudicatory powers of national courts over foreign states and enforcement immunity

6 John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack Whitacre, eds., “Exclusive
Economic Zones,” in “Maritime Zones,” in Law of the Sea, A Policy Primer (Massachusetts: The Fletcher School
of Law and Diplomacy, Tufts University,2017).
7
United Nations Convention on the Law of the Sea, Articles 58,86,87and 301, 1982.
 against the executive actions of foreign states. Article 95 and 96 of UNCLOS recognize
complete immunity of warships and governmental ships operated for non-commercial
purposes on the high seas. 8 Article 32 reaffirms the above but also require a war ship
to leave the territorial sea of a coastal state if it does not comply with laws and
regulations of the coastal state. 9 Warships are regarded as military instruments of the
state and is engaged in services for another sovereign states hence sovereign immunity
is accorded to the states and has been practiced as customary norms.
• UNCLOS and Maritime Security- UNCLOS is the international legal instrument for
approaching towards the challenges faced in the maritime security area. Maritime
security regulates the international order maintained through rule of law, and adheres
to the principles both of customary and formal international law, judicial decisions,
customs, etc. balancing interests of both state sovereignty ad global interest, it
prescribes specific enforcement and jurisdiction requirements for states by explicitly
and implicitly specifying broad issues of security. The convention provides a legal
framework through which states organize their military and law enforcement assets to
spread safety and security through international networks and coalitions. 10
• UNCLOS and the Environment- UNCLOS promotes management and policy making
that facilitates coordination between economic, environmental, and military uses. For
example, convention upholds every State’s right to exploit their natural resources as
long as they are in accordance with the environmental preservation. The convention
encourages States to protect the marine environments with its framework, enforcement
mechanisms, and anti-pollution measures. Article 236 of UNCLOS exempts warships
and other sovereign immune vessels, however, remains immune from such provisions.
• UNCLOS Dispute Resolution Provisions – UNCLOS states that the parties entered
into the Convention “prompted by the desire to settle, in a spirit of mutual
understanding and cooperation, all issues relating to the law of the sea and aware of the
historic significance of the Convention as an important contribution to the maintenance
of peace, justice, and progress for all people of the world.” 11 Part XV of the Convention
sets a comprehensive set of dispute resolution provisions centered around three basic
principles : (1) peaceful resolution of disputes, (2) flexibility of options in choice of

8
United Nations Convention on Law of the Sea, Articles 95-96,1982.
9
United Nations Convention on Law of the Sea, Articles 30-32,1982.
10 James Kraska, “Grasping the Influence of Law on Sea Power,” SSRN Scholarly Paper (Rochester, NY Social

Science Research Network, June 20,2009).

11
United Nations Convention on Law of the Sea, Preamble, 1982.
 dispute resolution mechanisms and (3) compulsory dispute resolution where States are
unable to settle a dispute on their own. 12

Chapter 4

India’s Position on the Law of the Sea

India’s position on Law of the sea is generally governed by Article 297 of the Indian
Constitution and laws on waters, continental shelf, EEZ and other maritime zones. 13 This
law defines India’s sovereignty over the waters and the seabed, as well as the land and
airspace above those waters. 14 Territorial waters extend for 12 nm from the baseline. All
foreign vessels have the right to pass that is, the innocent passage through the territorial
waters. India has claimed the contiguous zone to the extent of 24 nm by enacting Maritime
Zones Act of 1976. India’s stance on the continental shelf extends to 200 nm from land.
But the government can declare the continental shelf and its magical waters for a certain
area and take action to regulate it. Section 7 of the Maritime Act, 1976 provides exclusive
rights for the purpose of exploring and exploiting the natural resources within EEZ. India
is very well, a party to the UNCLOS.

Chapter 5

Conclusion: a way forward

Life itself arose from the oceans. Even though continents are being measured through land
distance and broader accessibility of transportation is made available through roads and air
but most of the people in the world live not more than 200 miles from the sea and relate
closely to it. Their lives largely depend on the resources explored from sea and if that’s not
protected and provided immunity from foreign elements then that becomes a matter of
security threat to the nation.

12
United Nations Convention on Law of the Sea, Articles 279-299, 1982.
13 Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.
14
Chandan Kumar Pradhan,” Law of the Sea: An analysis of contemporary conflicts,” 8 February,2020, (Law of
the Sea: An Analysis of Contemporary Conflicts (ipleaders.in))
 In spite of clearly defined boundaries, maritime disputes are common where countries
compete over inhabited and uninhabited islands. 15 The recent rise in number of piracy cases
and other transnational crimes near the Indian Ocean has exposed India to a maritime threat
with reference to issue of piracy and illegal, unregulated, unreported (IUU) fishing. There
are scant laws in UNCLOS which deal with the crimes being committed at high seas. There
needs to be a concrete law to deal with such issues with adherence to international
obligations.

One of the major disputes prevalent right now is between India and China in the Indian
Ocean region, where China has expanded his presence in the region. China has deployed a
huge number of naval forces to support counter-piracy operations in the region and invests
and sells arms to India’s neigh bours. Seeing this, India has increased diplomatic, security,
and economic ties with Indian Ocean Region maritime states. Indian Ocean region is the
hotspot for the activities like trafficking of narcotics, weapons, and humans. Countries like
Somalia, Yemen, Saudi Arabia, Eritrea, Afghanistan, Sudan are the most linked with illicit
people trafficking. 16

There is a growing need for an effective regional security architecture to address the
challenges and disputes. There must be an institutional structure in the region governing
the whole space for the betterment of all the countries in the region. Issues such has IUU
fishing which needs to be dealt carefully now, must be seen as a national security threat
and there must be formulation of domestic laws to help regulate it.

UNCLOS, to a larger extent deals with most of the issues pertaining to the maritime
challenges which the world is facing right now but there are certain loopholes and issues
which are still unanswered as the maritime domain is still developing in the whole world.
Due to lack of domestic legal framework of nations and by just considering UNCLOS as
an international obligation for governance of law of the sea, countries like China are
violating the international treaties and outdoing the law and order established by
international instruments for the benefit of the whole world.

Law and Justice goes hand in hand, without law, justice cannot be obtained and vice-versa.
With the advent of globalization, both merits and demerits shall also be attracted, therefore,

15 Tanvi Mathur, “International Maritime Disputes in India,” ( International Maritime Disputes Of India
(legalserviceindia.com)).
16
Harshit Bhimrajka, “Maritime boundaries and disputes in Indian Ocean region,” 7 December,2020, (Maritime
boundaries and disputes in the Indian ocean region - iPleaders).
we see rise of transnational crimes with the rise of trade and commerce between the
countries and for its governance laws are made so that justice i.e., equal share of rights,
duties and benefits are obtained to all. Main aim of the laws in the era of globalization is
that equal amount of right and benefits are achieved by all and if this purpose is not being
satisfied then justice will not be delivered at all. Hence, Law of the Sea at international
level or even at domestic level must be developed or perceived in such a way that justice
in the form of food, economic and national security is achieved and shared by all.

Bibliography

A. Primary Sources
1. Statute
United Nations Convention on Law of the Sea, 1982.

B. Secondary Sources
1. Book

John Burgees, Lucia Foulkes, Philip Jones, Matt Merighi, Stephen Murray and Jack
Whitacre, eds., Law of the Sea, A Policy Primer (Massachusetts: The Fletcher School
of Law and Diplomacy, Tufts University,2017).

2. Journal Article
James Kraska, “Grasping the Influence of Law on Sea Power,” SSRN Scholarly Paper
(Rochester, NY Social Science Research Network, June 20,2009).

3. Online Websites
1. Chandan Kumar Pradhan, “Law of the Sea: An analysis of contemporary conflicts,” 8 February,2020,
(Law of the Sea: An Analysis of Contemporary Conflicts (ipleaders.in))

2. Tanvi Mathur, “International Maritime Disputes in India,”( International Maritime Disputes Of India
(legalserviceindia.com).

3. Harshit Bhimrajka, “Maritime boundaries and disputes in Indian Ocean region,” 7 December,2020,
(Maritime boundaries and disputes in the Indian ocean region - iPleaders).

4. “Globalization,” (Globalization - Wikipedia).