The Pro-Active Use of International Law
Race to the Bottom
On 02 August 2007, a Russian mini submarine with a crew of three reached the true geographical North Pole at the bottom of the Arctic Sea and planted a Russian flag there. As news of the expedition led by explorer Artur Chilingarov emerged, there was consternation in the other four countries which border the Arctic — Denmark (as it controls Greenland), Norway, Canada and the US. They saw it as a blatant Russian land-grab. With global warming and the high probability of the Arctic icecap entirely disappearing in the next few decades, the Arctic’s rich deposits of rare minerals and oil have become the focus of renewed rivalry among the countries which border it. Russia has claimed that its continental shelf touches the Arctic and that it therefore has a well founded claim on the North Pole. If true, the implications are enormous. Russia could be sitting on untold amounts of oil, gas and other priceless minerals in an increasingly resource starved world. However, its claims are likely to be hotly contested. The Russian claim hinges on the definition of a continental shelf. Behind all these claims looms the United Nations Convention on the Law of the Sea (UNCLOS for short), which has been ratified by all these countries, with the sole exception of the US.
The Genesis of International Law
In the sixteenth and seventeenth centuries, the greatest menace on the high seas was piracy. In many cases, piracy was officially sanctioned by the state. Queen Elizabeth the First of England granted Francis Drake ‘letters of marque’ to capture any Spanish ships that he might encounter, Catholic Spain then being considered a mortal enemy of Protestant England. Of course, the main motivation was greed. Spanish treasure ships sailed regularly from ports in South America carrying the riches of Peru and Mexico to Spain. Privateering enabled states to delegate the task of capturing enemy ships to private citizens and to avoid the expense of maintaining a navy — an early example of outsourcing. Many enterprising shipowners and captains dispensed altogether with the letters of marque and attacked and captured ships, including those of their own nationality. These operators came to be known as pirates.
International law evolved in this period, the two most famous jurists being the Dutchman Hugo Grotius and the Swiss Emmerich Vattel. In his work ‘De Indis’, Grotius justified the use of privateers to attack vessels belonging to other nations in a state of war, but deplored piracy as a form of lawlessness. At this time, Spain and Portugal were the most powerful states. With the seas becoming part of the discourse on international law, the question arose as to how far out to sea a state’s control extended. Grotius was in favour of the freedom of the seas. However it is clear that this was a patriotic posture to enable the Dutch to use their superior naval power to seize control of the spice trade, then controlled by the Portuguese. In any case, the Portuguese soon surrendered the spice trade to the Dutch. The British on the other hand, after being invaded from Normandy in 1066 AD, were forever paranoid about another naval invasion of their island, just 21 miles away from the European mainland. They therefore claimed as their sovereign property the waters which surrounded their island. Significantly, as soon as the Dutch had captured the spice islands, their enthusiasm for freedom of navigation waned and they too advocated national control of territorial waters.
The Evolution of the Law of the Sea
Nations which had no strong maritime traditions wished to have their coastal areas as free as possible of foreign maritime incursions, while those with strong navies asserted their right to free navigation of the world’s oceans, unhindered by any notion of territorial waters. Eventually, both these concepts were incorporated into customary law. Coastal states asserted their right to the seas up to three statute miles (the supposed range of a shore based cannon) from their coasts, which were to be treated as an extension of their land territories. On the open seas, which then became the area outside these territorial waters, states had freedom of navigation.
The definition of the coastline then became important, since that is the base line for measurement. The United Nations Convention on the Law of the Sea (UNCLOS) came into effect in 1994 after sixty nations had ratified it. It had been necessitated because of various claims regarding the extent of territorial waters. As technological capabilities expanded and the increasing exploitation of local fish stocks rapidly depleted them, fishing fleets began to venture further and further afield. By the middle of the twentieth century, the fishing industry was heavily mechanised. Fishing vessels or rather factory ships, acting as mother vessels, collected the catch of smaller vessels and processed them mid-ocean. The poorer coastal states could not compete with these factory fishing fleets which were actually exploiting fish stocks that should have been harvested by their own fishermen. However, since most of them were poor and lacked the technological capability, richer better equipped fleets reaped the advantage. Ill-tempered disputes soon began to flare up. The ‘Cod Wars’ which erupted between Britain and Iceland in the fifties and seventies of the twentieth century over the activities of British fishing fleets close to Icelandic waters are one example. In order to prevent its coastal waters being overfished by fleets from Europe, Iceland unilaterally extended its territorial waters to 12 nautical miles. Britain refused to accept this and insisted that its fishing boats would continue to fish within these waters under Royal Navy protection. The Icelandic Coast Guard then resorted to cutting away fishing nets and capturing boats engaged in what it saw as hostile activity. In 1972 Iceland increased its territorial waters further to 50 nautical miles and later in 1975 to 200 nautical miles. Each move was hotly contested by Britain and the other European countries which fished in these waters.
In the late forties, oil was discovered in the Gulf of Mexico. Soon the first offshore oil rigs commenced operations. Within ten years, production had risen to in excess of 500 million tonnes. Exploration of the seabed had also resulted in the discovery of immense quantities of valuable metals. While immediate exploitation was not technologically feasible given the state of the art, it could be surmised that at some point in the future, this might become technically feasible. Here again, the developed world would stand to reap an advantage given its access to advanced technology and resources.
In the sixties, after the publication of Rachel Carson’s epoch-making book ‘Silent Spring’ awakened the world to the dangers of environmental pollution, protecting the environment became a concern. Taking advantage of this, Canada claimed the right to regulate maritime operations upto 100 nautical miles from its shores, ostensibly to combat pollution.
The UN Conference on the Law of the Sea (UNCLOS)
With all these activities, claims and counter-claims making the world’s oceans a prospective battleground, in 1967, Malta’s ambassador to the UN, Arvid Pardo, called for a comprehensive regime to control activities on the seabed and in international waters beyond territorial jurisdiction. The UN Conference on the Law of the Sea was convened in 1973 and the Convention on the Law of the Sea was adopted in 1982, however coming into force only in 1994 when the sixtieth nation formally acceded to the Convention.
The Convention covers a whole gamut of issues, raised by the increased technological advances of the twentieth century. It defines territorial and international waters and the rights of states, controls the exploitation of the seabed and bans nuclear weapons on it. It also recognises all resources on the seabed beyond territorial jurisdiction as the common heritage of mankind.
Definition of Coastline
Today most countries accept the definition of territorial waters as extending to twelve miles from the coastal baseline; the baseline itself is defined by the low tide water mark as marked on large scale charts officially recognised by the coastal state. Where the coastline is too indented, suitably drawn straight lines, connecting points on the coast, are used as the baseline. However the straight lines drawn must not depart too much from the general direction of the coast. Similar logic was used to determine the baseline for islands. Where islands have reefs, the seaward low waterline as depicted on officially recognised charts will be the baseline.
The baseline is important because all other measurements are made from it — the twelve mile territorial waters limit and the 200 mile Exclusive Economic Zone (EEZ) within which coastal states have sole right to exploit resources. There are various caveats to cater for coastlines where such demarcation is difficult because of the curvature of the coastline between two adjacent states or where two states share a common outlet to the sea close to a gulf or promontory.
The Exclusive Economic Zone
Once defined, all states have the right of innocent passage through territorial waters; either for the purpose of transit or to and from ports located on the coast. Innocent passage implies peaceful use of the waters. The carriage of weapons on ships or the use or threat of weapons or threatening actions like the launch of aircraft from ships are not permitted. Fishing, survey activities or any activities not directly related to passage through the waters are also prohibited. Submarines must transit on the surface and display their flag. The coastal state has full rights to regulate innocent passage for safety and its own security and also to prohibit non-innocent passage. The convention also specifies a contiguous zone immediately adjacent to the territorial zone within which it may regulate activities as necessary to prevent damage to its interests in the territorial zone. This zone may extend to a maximum of 24 nautical miles from the baseline. Within the EEZ, which may extend to a maximum of 200 nautical miles from the baseline, states have the right to ‘explore and exploit, conserve and manage the natural resources, whether living or non-living’.
How Long are Coastlines
Interestingly, the British mathematician Lewis Fry Richardson (1881–1953), who made enormous contributions to modern weather forecasting, was once working on a mathematical theory to compute the probability of war between two adjacent countries. He felt that this probability was dependent on the length of shared borders. While attempting to calculate the length of a frontier, he realised that the length of the border varied depending on the size of the measuring tool. A smaller scale would result in a larger answer. This is the Richardson Conjecture. Theoretically, using similar reasoning, it seems that coastlines too are infinite in length. For practical purposes, we consider them finite. The study of coastlines led to the development of an entirely new branch of mathematics — fractal geometry. Benoit Mandelbrot’s pioneering paper on fractals is rather appropriately titled “How Long is the Coast of Britain — Statistical Self-similarity and Fractional Dimensions”.
The Continental Shelf
Along with the definition of baseline, another issue was the definition of continental shelf and what rights coastal states had with regard to these. According to Article 76 of the convention, the continental shelf of a coastal State ‘comprises 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 of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance’. Coastal states were thus guaranteed a minimum of 200 miles of continental shelf. The continental shelf is where most of the commercially exploitable resources lie. So the definition of what constitutes the continental shelf is crucial.
The coastline of a coastal state is its visible and obvious boundary with the sea. The continental shelf slopes down rather steeply from the coastline to what is called the continental slope which is rather less steep. Below the continental slope is the continental rise which merges with the sea floor or technically the ‘abyssal plain’. Technically the shelf is an area of ocean which in previous ice ages was exposed and now is covered by a shallow layer of sea water. It is now believed to have been created by sediment dropping off the continental landmass.
The Russian Claim to the North Pole
The Russian Federation has in the Siberian Shelf the world’s largest continental shelf. It extends as much as 900 kms from the baseline and is therefore technically Russian territory. In 2001, Russia mounted an expedition to determine the extent of its continental shelf in the Arctic. In a claim submitted to the UN Commission on the Limits of the Continental Shelf, Russia claimed a large portion of the Arctic extending upto the North Pole. Another expedition mounted in 2007 submitted proof that the Lomonosov Ridge, an underwater mountain ridge, and the Mendeleev Ridge are extensions of the Eurasian continent and thus belong to the Russian Federation. According to the Arctic Centre based in Lapland in Finland, ‘the Russian Arctic, especially the Russian Arctic shelf, contains 100–200 billion tonnes of oil equivalents (one oil equivalent corresponds to the energy content of 1 kg crude oil). These numbers become significant in light of total world oil and gas reserves, which in 1997 amounted to 155 billion tonnes of oil and 145 trillion m3 of gas’. One can now begin to understand the anxiety with which other nations are viewing the Russian claim. All the nations involved, Canada, Denmark, Norway and the US have now started claiming various parts of the Arctic as extensions of their own continental shelves. Norway, a nation of only four million, has gone so far as to order 16 new frigates for its navy, probably in anticipation of conflicts to come.
India and the Antarctic Treaty
Where do we fit in all this? The Antarctic is the only continent without a native human population. As usual, scenting commercial opportunity or citing historical precedent, many of the developed countries started claiming parts of Antartica as their own territory. In 1961 the Antarctic Treaty signed by 12 countries set aside all territorial claims and established Antarctica as a scientific preserve. However, the treaty also recognises that these countries have a special interest in Antarctica. In 1983 India was admitted to the Antarctic Treaty and now has consultative status. Thanks to the foresight of several pioneers, we established a permanent research station ‘Dakshin Gangotri’, one of the requirements for recognition as a member of the treaty. This station has now been abandoned and we presently operate Maitri as a research station. India is thus one of only nine countries which maintain a year round presence in Antarctica. We have therefore demonstrated the technical ability to maintain a permanent station in Antarctica.
Forging International Law in line with National Interest
India was pro-active in Antarctica and therefore our presence there is now recognised internationally. We have a right to be there. In international fora, it is foresight and strategic thinking that counts. All the clauses regarding the definitions of coastline, baseline, continental shelf, EEZ etc. were conceptualised and argued by clever lawyers and statesmen motivated by national interest. Various clauses have been inserted specifically to safeguard a particular nation’s interests and have been agreed to by other nations who have pushed their own interests elsewhere. The poorer nations are not part of the process at all. In any case as we now know, they are routinely bribed at the UN and elsewhere in order to provide the votes necessary for a quorum. Do we want to be like the passive, helpless ‘bastiwalas’ we see in Hindi movies, watching the villains bash up some hapless victim? We too need to have our lawyers on the job, claiming part of the resources of the earth, wherever they may be, through clever treaty formulation and interpretation. Otherwise we will always be looking upto but never be seated at the high table. This needs great political leadership. The US with its Theory of Manifest Destiny and the Monroe Doctrine claimed pre-eminence in affairs relating to the American continent and primacy in all matters relating to the Americas. Who gave them that right? No one. They just claimed it and held to it. We need to be assertive too.
