INTRODUCTION
Being the third largest of the five major oceans in the world, the Indian Ocean is located in a strategically and economically critical region providing for major sea routes connecting the Middle East, Africa, and East Asia with Europe and America. It is one of the world’s busiest maritime routes. Accelerated by the advances in maritime technology, the rise of independent states, and the growing globalization and industrialization trends, the Indian Ocean region has been witnessing a rapid increase in its intense multinational activities since the 20th century.
This transnational character of maritime business made the national maritime frameworks inadequate and necessitated the acceptance of international regimes in order to protect the security interests of the States, promote maritime trade and development, and safeguard the marine environment. This paper attempts to analyse the Indian Ocean region under the international legal framework and the policies related to maritime zones, crimes at sea, marine environment pollution, and fishing in the region crystallized in the backdrop of existing international laws.
INDIAN OCEAN UNDER THE INTERNATIONAL FRAMEWORK
The activities in the oceans are generally governed by an extensive legal regime, globally, which includes many international treaties and customary laws. The most highlighted one of this regime is United Nations Convention on the Law of the Sea, 1982, and it is considered to be the fundamental expression of the rules governing general relationships and jurisdictions at sea[1].
It is commonly known as the ‘constitution’ for the seas. The Convention not only provides for a framework but also establishes and institutionalizes a comprehensive maritime regime that balances the rights and obligations of States with the interest of the international community. It serves as a foundation for creating more specialized agreements, treaties, organizations, programs and related activities, governing the fish stocks on high seas; the operation of the International Seabed Authority in managing minerals beyond national jurisdiction; and the implementation of security and environmental parts negotiated under the International Maritime Organization, as well as security partnerships such as Proliferation Security Initiative[2].
The Convention is very crucial to every ocean and every State as it gives landlocked and geographically disadvantaged States new rights and sets up new universal standards[3]. The Convention facilitates the cooperation of all the States Parties in the implementation of a global maritime policy. Now, it is imperative to note that since all the coastal states bordering Indian Ocean, except Iran and Cambodia, are parties to the Convention, its role in ocean management and uniform governance in the Indian Ocean region is of paramount importance.
The international legal instruments relating to Indian Ocean region also include several international environmental treaties and frameworks for ocean governance and preservation of marine environment, such as United Nations Framework Convention on Climate Change, United Nations Convention of Biological Diversity, United Nations Convention on Migrating Species, United Nations Convention on International Trade on Endangered Species, United Nations Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, etc.
Last but not least, the international customary laws are also relevant for the governance of maritime activities in the region. International customary laws are the international obligations arising from established State practice which bind States in their conduct and relations and are not reduced to a written instrument[4]. States abide by these legal obligations because they consider themselves legally obliged to do so. Such customary rules can sometimes be difficult to identify, and States differ as to which rules meet the requirements of being customary international law.
MARITIME ZONES AND BOUNDARIES
Maritime zones, established by the Law of the Sea Convention, are often considered as the backbone of offshore governance. The regime of consecutive maritime zones is vital for maintaining maritime security and order in the Indian Ocean region. UNCLOS divides the oceans into eight zones as Territorial Sea, Contiguous Zone, Exclusive Economic Zone, Continental Shelf, High Seas, The Area which also known as the ‘common heritage of mankind’, International Straits, Archipelagic Waters. The maritime boundaries between adjacent nations in Indian Ocean region has been established by treaty and reflect the principles of equidistance, equity, history, and special circumstances. UNCLOS provides various venues for the related dispute settlement also.
MARITIME CRIME POLICY
The Indian Ocean, being a major transit area for international trade, has become a conducive platform for maritime crimes especially, piracy attacks, armed robbery against ships, drug trafficking, human trafficking, wildlife crimes, degradation of ocean health, unlawful exploitation of marine resources and other related crimes having its repercussions on political, economic and environmental safety and security of the sea. UNOSAT’s Global Report on Maritime Piracy reveals that pirate attacks in Indian Ocean region are most frequent on the High Seas beyond coastal state jurisdiction. In the recent years piracy off the coast of Somalia and in the Gulf of Guinea were frequent, affecting the welfare of seafarers and the security of navigation and commerce. As a result, various international and regional initiatives have been negotiated in the region to combat maritime safety and security challenges and threats through the active cooperation of member states.
The prominent institution that works towards this end is International Maritime Organisation (IMO). IMO, to which all the coastal states of the Indian Ocean are members, serves as the major source of international rules and guidelines concerning shipping operations in order to promote safety and security at sea. It also works with straits and archipelagic states to determine up on the sea lanes in international straits. Under the patronage of IMO many relevant maritime safety and security conventions have been negotiated and come into force. Among those, International Convention for the Safety of Life at Sea (SOLAS), 1974 is the most important international treaty with regard to the safety of merchant ships.
It sets minimum standards for the construction, equipment and operation of ships compatible with their safety and it also provides for certification as a proof of compliance to such requirements. The Convention on the Suppression of Unlawful Acts (SUA) concerning the unlawful acts which threaten the safety of ships and security of their passengers and crew is also a pertinent international treaty negotiated under IMO to promote and secure maritime security. The recent protocols to SUA addresses, inter alia, the issues of international terrorism.
Besides IMO, United Nations Security Council also works towards ensuring safety and security in the ocean by adopting resolutions to effectively counter piracy threats and renewing such resolution time to time. UNSC Resolution, 1946 which authorized the foreign ships to enter the territorial sea of Somalia in the wake of Somalian piracy issues is a pertinent example in this regard.
Moreover, addressing the issue of maritime crimes in Indian Ocean region in a broader view, UNODC has established Maritime Crime Programme involving States in the region as a part of its counter-piracy activities to assist them to improve and coordinate their efforts to combat maritime crimes with emphasis given to criminal justice capacity building. The centrepiece of MCP is the Regional Piracy Prosecution Model introduced with an aim to provide a legal framework to combat piracy and related crimes at sea. The Regional States, military forces, several international and regional organizations collaborated with UNODC Maritime Crime Programme and gave shape to this framework.
This prosecution model is an innovative criminal justice policy regarding piracy as it not only ensures the establishment of a domestic legislation in the states to prosecute piracy and mandates that the trials are fair, efficient, and in compliance with the international standards, but also ensures the safety and humane conditions of both the suspected and convicted pirates in accordance with the international human rights norms. To this end, it has also introduced a Piracy Prisoner Transfer Programme to facilitate the transfer of consenting piracy prisoners to UNODC supported prisons. MCP also works to counter the growing threat of drug trafficking at the sea throughout the region.
MARINE ENVIRONMENT PROTECTION REGIME
The toxic mixture of increasing surrounding population, natural bleaching and over-exploitation of resources poses a growing threat to the most important ecosystems in the Indian Ocean viz., coral reefs, seagrass beds and mangroves. The loss of biodiversity, noticeably, of endangered species like turtles and whale sharks, and the marine pollution caused from oil spillage and oil exploration activities are the major environmental issues concerning Indian Ocean. Part XII of UNCLOS exclusively deals with marine pollution and urges states to adopt an environment-friendly maritime regime.
According to this Convention, the states are under obligation to enact and enforce laws and regulations to prevent, reduce and control pollution of marine environment from any source including land-based sources of pollution. It also sets forth restrictions on the amount of pollutants and toxins that are emitted from the ships. However, UNCLOS is often considered as a toothless law lacking enforceability at international level especially, when it comes to regulating land based marine pollution.
Nonetheless, under the auspices of IUCN, the development of an international instrument that legally binds all the nations under UNCLOS is under process as its first, second and third Inter-Governmental Conference (IGC) was held in 2018, 2019 and 2020 respectively. The aim of IGC is to build a new agreement on the conservation and sustainable use of biological diversity beyond national jurisdiction (BBNJ) under UNCLOS.
Currently, The Regional Seas Programme of UNEP and the regulations of IMO are the only legal frameworks that protects marine environment at regional level and international level respectively. IMO’s legal framework which sets minimum standards for shipping industry includes the landmark International Convention for the Prevention of Pollution from Ships as modified by MARPOL, 1978 and International Convention for the Prevention of Pollution of the Sea by Oil, 1954.
POLICY RELATED TO FISHERIES
Fisheries in Indian Ocean are the third most important in the world having tuna, small pelagic fish, and shrimp as its important species in the region. The fishing policy in the region is mainly governed by international frameworks and the states have limited or no jurisdiction in this matter. United Nations Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migrating Fish Stocks, commonly known as UN Fish Stocks Agreement, came into force in 2001 with an objective to provide a framework for the establishment of principles for the conservation and management of the high seas and straddling fish stocks based on the precautional approach and the best available scientific information and to implement them in accordance with UNCLOS.
The Agreement serves as an umbrella agreement under which the regional agreements regarding this subject matter operates and stands as a model legislation for the states to become responsible fishing regime. One of the most important regional agreements negotiated under it is Southern Indian Ocean Fisheries Agreement (SIOFA).
Another institution that plays a key role in international fisheries management is Food and Agricultural Organization (FAO) by promoting sustainable fishing not only in the high seas but in the national waters also. Further, FAO has established four regional fishery commissions namely, Asia Pacific Fishery Commission, Indian Ocean Tuna Commission, South West Indian Ocean Fisheries Commission, and Bay of Bengal Program Inter-Governmental Organization. However, when the states loose the capacity to manage their offshore resources due to the dysfunctional government or weak enforcement mechanisms, the frameworks for prevention and control of unlawful fishing, overexploitation, etc., may become futile.
CONCLUSION
Although there exist many relevant international treaties and agreements to govern the maritime conduct in the Indian Ocean region, it is evident that they are not exhaustive so as to address all the issues concerning the region most especially and importantly, in the areas of marine environment protection. In practice, many of the frameworks, including UNCLOS, lack enforceability at international level due to the tendency of the nations to expand their authority. Furthermore, the political, economic and geological diversity in the region in terms of population, size of the nations, natural resources, culture and traditions, etc., poses a greater challenge in ensuring the cooperation of all the nations.
The failure of states and lack of capability to monitor the conduct at sea and to enforce their laws, place offshore security of weaker nations at stake. Somalia piracy attacks is an ample example in this regard. The existence of conflicting national laws also makes the policy implementations difficult. However, increasing regional recognition and application of UNCLOS and the membership in IMO provides a common platform for establishing an international Indian Ocean policy and addressing disputes among nations.
Yet, it is the need of the hour to negotiate upon and adopt additional agreements and treaties to create binding rules and regulations at global level for a sustainable ocean management policy governing Indian Ocean. As Peter Thomson said, “the future of human health, of sustainable food and socio-economic systems, of renewable energy and of a stable climate relies on a healthy ocean”[5].
[1] MARITIME CRIME: A MANUAL FOR CRIMINAL JUSTICE PRACTITIONERS, UNODC, 20th Edition (2020).
[2] Caitlyn Antrim, INDIAN OCEAN RISING: MARITIME SECURITY AND POLICY CHALLENGES, (2012).
[3] Shanti Wickremeratne, THE LAW OF THE SEA AND THE INDIAN OCEAN, UNEP, (1991).
[4] MARITIME CRIME: A MANUAL FOR CRIMINAL JUSTICE PRACTITIONERS, UNODC, 20th Edition (2020).
[5] Peter Thomson, at the UN Ocean Conference, June 5, 2017.
This article is authored by Anitta Varghese, the author is 4th year BA LLB student at St Joseph’s College of Law, Bangalore She is interested in Maritime Law, Law of the Sea and International Arbitration.
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