Maritime Security: International Solidarity

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Abstract

The Ocean or the World Ocean is the body of water covering around 71% of the earth’s surface. The Law of the Sea regulates the vast surface and its use. Public International Law of the Sea first appeared in 17th Century Europe. Historically a legal framework for the activities in the ocean has existed for quite many centuries now. The United Nations (UN) has set up a firm legal guide for marine activities. The United Nations Convention on the Law of the Sea, 1982 (UNCLOS) serves as the legal framework for international interest. However, it is not the only aiding guide provided. The International Convention for the Safety of Life at Sea, 1974 (SOLAS) protects merchant ships. Trade is integral to human activities on the sea. The International Ship and Port Facility Security Code (ISPS Code) is adopted under SOLAS. ISPS Code is mandatory for all member states of the Convention. These initiatives taken by the UN have a common objective. All of them aim to avoid conflict and maintain peace and friendly relations globally. Maritime security is the most secure way of attaining global prosperity.

Maritime transport and maritime security have been mentioned several times during international diplomatic summits in 2021. Significant developments were – President Joe Biden (USA) spoke on establishing favorable maritime relations with fellow nations, including India and Prime Minister Narendra Modi (India), raised the issue of maritime security as the Chairperson in UNSC 2021. Maritime plays a considerable role in international relations overall and between nations for both trade and military. Maritime security is a harbinger of international peace and prosperity. Coastlines with negative tension and disturbances from outsiders mean good relations with fellow nations. Therefore, Maritime Security has been and will always be the need of the hour.

Introduction

The ocean is not always calm, and turbulence is a natural part of it. However, many times disturbances on the sea are artificial. Artificial implies that such disturbances are a product of intentional and unintentional human activities. The Law of the Sea’s objective is to reduce such tension to the minimum. Hence, countries have developed trade and military routes, industries and have demarcated territorial and business zones. UNCLOS acts as the standard and guide.

In history, capacious claims were put over sea lanes and territory by powerful states. Thus, the principle of “freedom of seas” (“mare liberum” in Latin) is crucial in the history of international law. Hugo Grotius, a Dutch philosopher, and jurist, developed this principle.[1] International law has grown a lot over time. In modern times United Nations has taken up a very active role in setting up firm codified maritime rules. The Geneva Conventions were the first step towards standardized sea laws. With overflowing global trade and commerce, maritime has adopted the principle of “laissez-faire”. This principle has led to the invention of the concept “open-sea”. United Nations Convention on Law of the Sea is an international treaty or agreement signed in 1982, came into force in 1994.[2] This Convention of international law binds 154 nations.

Many seaborne industries have developed with time. Namely – aquaculture, fish processing, tourism etc. Maritime Industry refers to maritime or waterborne transport of goods and people. One of the largest global industries is most definitely seaborne transport. It is a crucial player in global trade and international trade relations. It also acts as an indicator of friendly relations between countries. Maritime transport is the most environmentally stable method of mass transport. It is the least pollution-causing and the most energy-efficient. Past to present, maritime transport carries the most considerable portion of freight transport. Maritime moreover contributes to the economic as well as social sector. It helps create stable economies and provide steady livelihoods. With so much dependence on the ocean, Maritime Security is essential.

Global Village

The world has never been more miniature. “Global Village” is an often-used term. With more interconnectivity of the world, trade and diplomatic relations have also accelerated in the past decade. Hence, the international society requires firm international law that aids and protects every nation’s rights and freedom. The Convention (UNCLOS) is the pioneer of such codified international law.   

UNCLOS and Maritime Agencies

The United Nations Convention on the Law of the Sea, 1982, is historic in every sense. It comes from the primary times when codification of international law materialized. Such a thing was a magnificent landmark achievement in the history of international law. The first paragraph in the Preamble of the Convention sets the mood for the whole maritime legal system. It aspires for cooperation and mutual understanding from all states for the collective maintenance of peace, justice and progress of the world. The Convention firmly believes that the codification of the law is a step towards progressive development, international peace and security.[3] Therefore, the Convention constantly reiterates its motive for international cooperation in its contents.

Furthermore, it has provided a detailed guide on how developed coastal countries should help other land-locked and underdeveloped coastal countries. It details the methods of sharing the resources and water columns amongst coastal and land-locked nations. UNCLOS is respectful of the national laws of every nation. However, it is firm and imposes a duty of maintaining peace on water over all countries.

UNCLOS brought in clear demarcation and delimitation of sea areas under the jurisdiction of the coastal states. The location or the sea areas under the jurisdiction of the coastal states include the seabed, subsoil and air space.

IMO or the International Maritime Organisation is a specialized agency with the global authority and duty to sustain maritime trade safety and security and protect the ocean from pollution. Its sub-division Maritime Security Facilitation’s (MSF) fundamental function is to provide consultation and assistance for safety and security to its member states.

Many coastal nations have domestic maritime agencies like the UK’s Maritime Coastguard Agency and Her Majesty’s Coastguard.

Maritime agencies’ focal objective is to prevent accidents that harm vessels and the ocean environment.

Maritime Security

Maritime security is a specialized field that oversees the protection of vessels internally and externally. Therefore, it is essential to help secure the ships from any threat without fragmenting the flow of international trade. [4]

Maritime transport is no stranger to disturbances. Vessels face several threats during the journey. Piracy, terrorism, thievery, human trafficking and other illicit activities have always been a constant threat to the shipping industry.  For example, piracy is heavily technological and advanced in the current scenario. Similar to automatic cars, automatic ships and vessels have taken over the latest trends at present. These vessels have no crew and hence are more vulnerable to piracy. Thus, with moving times, cybersecurity at sea has also gained importance.

SOLAS and ISPS Code

Maritime transport is the backbone of global trade. There are hundreds of cargo ships sailing on the sea on a regular. Almost all countries depend on and contribute to maritime trade. As of 2020, the United Nations Conference on Trade and Development (UNCTAD) marked that Asian countries have the highest contribution to the marine business.[5] However, merchant ships are very vulnerable to threats and security issues. Therefore, the international society must have firm rules and regulations that protect the vessels and prevents mishaps.

The International Convention for the Safety of Life at Sea (SOLAS)[6], 1974, is the key to protecting merchant ships. So it has been through numerous amendments. In the 1974 amendment of SOLAS, the Convention adopted the most significant addition. It is a new and improved maritime security regulatory regime. Recent advancements in technology and the diplomatic scene required a better and enhanced administration. As a result, it adopted the International Ship and Port Facility Security Code (ISPS Code). This Code provides a thorough list of requirements that the member states must fulfil.

UNSC 2021

The United Nations Security Council (UNSC), a vital organization of the United Nations, had a pervasive and productive debate on maritime security in 2021. UNSC’s fundamental role is to oversee all-inclusive peace and security. In addition, it serves as the international open stage of diplomatic debates and discussions. Thus, the country representatives can peacefully raise their grievances and discuss global prosperity.

Generally, many maritime issues are related to the delimitation of the Territorial Zone, Contiguous Zone and  Exclusive Economic Zone (EEZ). These disputes are handled as per the rules in the UNCLOS convention by the International Court of Justice.

In 2021, India chaired UNSC. As mentioned earlier, maritime security was the session’s topic, and the Indian candidacy emphasized the various threats. India’s Presidential stand in the United Nations Security Council declared the superiority of the United Nations Convention on the Law of the Sea, 1982. The Presidential statement is as follows – “The Security Council reaffirms that international law, as reflected in the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), sets out the legal framework applicable to activities in the oceans including countering illicit activities at sea.”[7]

It was a firm stand that reaffirmed the position and significance of the United Nations Convention on the Law of the Sea, 1982. Furthermore, Indian diplomacy emphasized the need of securing coastal communities against illicit activities. Safeguarding the oceans will never cease to be a priority.[8]

It was the first-ever where UNSC discussed Maritime Security in such a high-level debate. Achieving sea transport without any disturbances is a goal still unattained. Human trafficking is an old-time plague for maritime. It is one of the most prominent issues faced by international marine security. Millions of refugees and immigrants opt for marine transport to escape their homes. Therefore, filtering human traffickers and victims is no easy task. However, this is a problem that needs a definite cure even with no easy way out. The Indian candidacy, therefore, moved the Security Council members to implement the United Nations Convention against Transnational Organised Crime, 2000.

India urged the Member States to implement Chapter XI-2 of the International Convention for the Safety of Life at Sea, 1974 (SOLAS), constituting the International Ship and Port Facility Security Code (ISPS Code). Implementation of this provision is the most concrete way of securing ports, vessels and coastal communities. Furthermore, they added the necessity of Member States to work and collaborate with the International Maritime Organisation (IMO). This collaborative effort shall allow the promotion of inviolable shipping along with freedom of navigation.

Many countries stood in agreement with India’s statement. The Permanent members (USA, UK, China, Russia and France) of the Security Council mostly gave parallel replies to India. All of them reiterated and emphasized the importance of international collaboration and hashing out disputes through dialogue. However, China has been defensive about maritime issues because of the South China Sea disputes. The Chinese delegation even called out the panel from the USA about their support of the importance of UNCLOS as the USA is not a part of UNCLOS. However, despite these to-and-fro comments, China did submit that UNCLOS is a superior international law that all nations must follow.

It is safe to say that Maritime Security has taken center stage in the stage of global politics. As previously mentioned, maritime is arguably the most extensive global industry. Consequently, interruptions in the flow of commerce and shipping have vast global consequences.

South China Sea Dispute

South China Sea dispute is perhaps the most well-known maritime dispute. Maritime issues over delimitation of the Territorial Zone, the Contiguous Zone, Exclusive Economic Zone occur very often. It happens when several coastal countries share the same sea area. Thus, concerned nations must clarify disputes of this manner through dialogue.

The coastlines of several sovereign states share the South China Sea. The Sovereign states are – Malaysia, the Phillippines, Vietnam, Indonesia, Brunei, the People’s Republic of China (PRC), and Taiwan (Republic of China). The People’s Republic of China (PRC) has built artificial islands and started militarizing them for quite some time now. The other six bordering nations have revealed their concerns against such activities time and time again. However, China claims it to be their sovereign state and hence deserves no interference in these matters. Despite such claims, the region concerned remains disputed waters and officially lies outside China’s internationally acknowledged borders.

Nations with due notice have the autonomy of setting up artificial islands and other installations in their Exclusive Economic Zone (EEZ) according to Article 60 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS).

The Exclusive Economic Zone or the EEZ is adjacent to the territorial sea, extending up to 200 nautical miles. Article 38 from the Statute of the International Court of Justice[9] deals with disputes related to the delimitation of the EEZ. The countries must reach an agreement within a reasonable time following Article 38, which analyses international conventions and customs with generally accepted principles by civilized nations. If a timely agreement between the concerned countries is unattainable, Part XV of UNCLOS details the obligations for a peaceful delimitation. The Court and the concerned countries must take practical and unprejudiced measures in the final delimitation.

However, in South China Sea’s case, China refused to accept the ruling of the International Tribunal for the Law of the Sea (ITLOS). Moreover, China has also claimed to have incontestable sovereignty over the Spratly Islands and the neighboring waters.

The South China Sea is critical strategically for both trade and military. It consists of numerous straits. The Strait of Malacca is of utmost importance; it connects the Indian and Pacific Oceans. This strait single-handedly carries one-third of the global maritime industry. Therefore, the Strait of Malacca is one of the most significant geopolitical water bodies.[10]

Despite these statements regarding the South China Sea, the People’s Republic of China (PRC) has submitted to the importance and supremacy of UNCLOS. The United Nations Convention on the Law of the Sea, 1982 is a prevalent and significant international law necessary to maintain peace and unity worldwide.

Conclusion

Maritime Security covers a broad spectrum of topics. From crimes and illicit activities, delimitation of the coastal borders, to environmental issues. The ocean is called the source of life. The phrase can be understood in many ways. It is essential for humans to properly cherish and preserve the sea and its gifts to humankind.

Maintaining peace and order at the ocean is one of the primary duties of individual nations and international diplomatic institutions like the United Nations (UN). However, Maritime is an often disputed matter in the International Court of Justice. Especially the delimitation of the territorial sea amongst countries that share adjacent coasts. Even though the Delimitation of the Territorial Sea (Article 15 under UNCLOS) is uncontroversial, it is a constantly disputed matter in the International Court of Justice.[11]

Therefore, peace and security in the marine sector imply international unity and prosperity. Countries need to realize that Maritime Security is necessary for international solidarity. Increasing globalization needs a peaceful, firm, and secure maritime system. It is plausible when countries recognize and abide by the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). UNSC 2021 debate on Maritime Security was a new and most recent step towards a better maritime system.


[1] Law of the Sea – History, Evolution and Provisions, available at : https://www.legalbites.in/law-of-the-sea/ (last visited on October 15, 2021)

[2] United Nations Convention on the Law of the Sea, available at : https://legal.un.org/avl/ha/uncls/uncls.html (last visited on October 16, 2021)

[3] United Nations Convention on the Law of the Sea, available at : https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (last visited on October 12, 2021)

[4] Guide to Maritime Security, available at : https://www.mitags.org/security-guide/ (last visited on October 09, 2021)

[5] UNCTAD, “Review of Maritime Transport 2020”, 7 (November, 2020)

[6] Maritime Security, available at : https://www.imo.org/en/OurWork/Security/Pages/GuideMaritimeSecurityDefault.aspx (last visited on October 17, 2021)

[7] UNCLOS accepted as legal framework for all activities in the Oceans, available at : https://www.financialexpress.com/defence/unclos-accepted-as-legal-framework-for-all-activities-in-the-oceans-by-unsc/2307540/ (last visited on October 18, 2021)

[8] UNSC meet on Maritime Security, available at : https://www.drishtiias.com/daily-updates/daily-news-analysis/unsc-meet-on-maritime-security#:~:text=India%2C%20as%20the%20UNSC%20president,and%20France)%20attended%20the%20Meet (last visited on October 19, 2021) 

[9] United Nations Convention on the Law of the Sea, 1974, art. 74

[10] South China Sea, available at : https://www.drishtiias.com/to-the-points/Paper2/south-china-sea (last visited on October 19, 2021)

[11] Judicial Uncertainties on Territorial Sea Delimitation under Article 15 UNCLOS, available at : https://www.repository.cam.ac.uk/bitstream/handle/1810/263983/Lando.pdf?sequence=1 (last visited on October 19, 2021)

Author: Ipsita Gogoi, NEF Law College, Guwahati

Editor: Kanishka VaishSenior Editor, LexLife India.

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