The United Nations Convention on the Law of the Sea (UNCLOS) is a comprehensive UN legal policy document demarcating areas of the sea under the jurisdiction of member states as well as legal clauses for human maritime activity in a comprehensive manner.
The UNCLOS aims to demarcate and scrutinize the legal ramifications in the fullest possible scope of different jurisdictional and geographical areas of the sea as well as for human maritime activity.
The sections for maritime zones that were defined in the UNCLOS include the exclusive economic zone (EEZ), the territorial sea, the contiguous zone, the continental shelf, archipelagic waters, the international sea-bed areas and the high seas.
The sections for maritime activities are numerous and intricate, and some examples include clauses for shipping routes, marine conservation, resource exploitation, and for scientific research.
Formulation of the UNCLOS
The UNCLOS replaces the earlier concept of areas of the sea belonging to states coupled with international waters and developed due to conflicts between states over areas of the sea. The area of the coastal sea that states could control through history had generally been that area that states could control through its navy. Thus the areas extending over a 3 mile area from the coasts of nations over time came to represent the areas of coastal sea that states could administer.
The areas of the sea not coming under the jurisdiction of states i.e. international waters, later would form various sub-categories under the UNCLOS. These areas that since the 18th Century were generally understood as territories of the sea legally belonging to states were very troublesome, especially in case of overlapping of territories or encroachment and detention. The ambiguities created during the Second World War led to an international churning for the UN’s International Law Commission to establish a proper codification system for these disputes over the world’s oceans.
The UN’s International Law Commission began working on this issue and prepared the 4 draft conventions by 1949. Between February 24 and April 29, 1958, international negotiations and meetings ensued for the first UN Conference on the Law of the Sea – UNCLOS I. The basic form of the 4 draft conventions were adopted in UNCLOS I, and these are known as the 1958 Geneva Conventions. However, the limits established by this round of meetings did not prove adequate, although it established certain outlines of the sections that the UNCLOS would address.
The UNCLOS II held in 1960 led to similar disagreements over the finer contents of the draft, especially over the breadth of the territorial seas and over rights concerning fishing activities. The third conference held between 1973 to 1982 – UNCLOS III – would prove to the final such conference, and was finally passed on November 14, 1994 including the participation of 160 states (GRID-Arendal, 2014).
A Brief Overview of the UNCLOS in Practice
The UNCLOS may be comprehensive in defining the scope of human intervention over the seas, but as a legal instrument it is at the most a framework convention that works in conjunction with national laws, international treaties, organizations and other conventions (S.O. Williams, 2014). However, the advantage offered by the UNCLOS is the comprehensive enumeration of maritime zones and the rules for operations wherein – a combination that is the first of its kind. The UNCLOS also offers legal instruments for assessing and responding to maritime threats many of which were previously not clearly defined.
However, since the UNCLOS is subject to the behaviour of individual states, many a time its rules have been flouted in a global system that tends to favour the United States in terms of international law, geopolitics, etc. An example is China’s behaviour in the South China Sea. China claims historical rights over about 90 per cent of the waters of the South China Sea, which became an issue since the Philippines challenged this with a lawsuit under international law.
China on its part refused to acknowledge a ruling by an international tribunal under the UNCLOS to cede its claim. This dispute was accompanied with Chinese military activities in the South China Sea that faced global opposition led by the United States, which is usually the chief arbiter of international dispute resolution.
This is also curious due to the fact that the United States has military bases in numerous locations all over the world close to marine habitats, giving it rapid access to geopolitical zones in international waters worldwide. Resistance by many states to UNCLOS clauses comes with a need to assert their autonomy in a global regime led by the US and its allies, other than geopolitical considerations towards other member states.
India’s position in this particular dispute has been one of diplomatic negotiations over the lawful and peaceful negotiation of the dispute under the UNCLOS. India follows much of the rest of the world in that the UNCLOS is a widely accepted legal document in state practice all over the world, such that many observers point towards the UNCLOS being a proxy customary international maritime law. The Act places between 2.2 to 2.8 million square km of sea under India’s jurisdiction, the boundaries are not clearly demarcated, such as the critical one between Indian and Pakistani waters, that includes the Sir Creek area.
India has a special need for the UNCLOS, as the medium of transit for 90 per cent of India’s trade is through the seas and oceans. Also 65 per cent of the known oil reserves globally are located in the Indian Ocean region, with 40 per cent of global offshore reserves with countries having coasts by the Indian Ocean (P.A. Jayan, 2013). An international legal regime becomes even more important thus given the piracy and business practices involved in these regions. The Indian Express (2017) reports that the year 2011 alone witnessed 237 attacks by pirates in the Indian Ocean region, making international legal co-operation even more necessary.
Although the UNCLOS for India is a very valuable document to protect trade and resource exploitation in the region, it can also provide an effective legal framework to protect marine species and environments from anthropogenic activities.
Part XII of the UNCLOS is titled ‘Protection and Preservation of the Marine Environment’ which obliges states to protect the environment, along with comprehensive clauses throughout the agreement for the protection of marine life.
Given India’s diminishing fishing stock and commercial poaching and illegal trade in marine goods that have for example wiped out large populations of species such as sea cucumbers and sea horses off India’s coasts, India must utilize the treaty for environmentally sustainable use of its areas specified under the UNCLOS as well, and not subject the Convention merely to utilitarian use.
The Convention represents a great opportunity for India to co-operate internationally on conservation matters on a legal basis, and thereby achieving sustainable use of the surrounding seas can potentially reap great benefits.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.