Thursday, December 10, 2009

Coastal State’s Security Concerns and Transnational Norms Governing Freedom of Navigation.

(V.M. Syam Kumar LL.M., Advocate, High Court of Kerala, Lecturer for Maritime Law, National University for Advanced Legal Studies, (N.U.A.L.S)., Ernakulam.)
(Abstract of the paper presented at the two day National Workshop on coastal security organized by the K.PS.Menon Chair for Diplomatic Studies, School of International Relations and Politics, Mahatma Gandhi University, Kottayam, Kerala.)
Coastal Security: Urgent need for a closer look.
India is blessed with a long coast line. The vulnerability and porous nature of our coast line have been revealed by the recent spate of terrorist attacks on our soil. Persons who indulged in mass killing of innocent men and women were not from within. They were foreigner mercenaries who managed to enter the country through the sea. They entered via our long coastline and wrecked havoc with reasonable ease. Towards ensuring that such incidents are not repeated and the blessing by way of a long coastline does not turn into a bane, we have to take a closer look at our coastal security apparatus towards revamping the same.
Some questions to be answered.
Coastal Security is not a subject that permits its scrutiny within the sole confines of national laws. It has transnational relevance as it relates to various internationally accepted and uniformly followed norms that govern the various uses of the sea including navigation. Any amendment to the national laws governing the maritime belt should also take note of the international norms touching the issue. In the present era of globalization, no country can afford to unilaterally change the principal norms pertaining to its maritime zones. India is not an exemption to this rule and hence before evolving new norms catering to our perceived coastal security concerns, the validity of the proposed solutions should be tested in relation to relevant international norms as they presently stand.
While thus examining the norms governing coastal security with an objective to redraft the same, the following questions come to the fore:
Is there any conflict between the costal state’s security interests and the concept of freedom of navigation as we know it under international law of the sea?
Are there any norms in the international law empowering littoral states to evolve effective laws to protect its territory including coast line from non state actors or terrorists?
If such international norms do exist, then how effective are they in providing coastal security to the state from non state actors or terrorists?
Does the present delimitation of maritime zones and the nature of jurisdiction granted to the coastal state within each of these zones effectively empower the state to protect its coast line from non state actors or terrorists?
Will extension of sovereign rights or jurisdictional powers further into the sea and over the contiguous zone and the continental shelf, protect in any manner the security interests of the coastal states from non state actors or terrorists?
Whether the concept of freedom of navigation has in any manner diluted the costal state’s jurisdiction to secure its coast line?
Does the existing norms tilt more in favor of protecting freedom of navigation at the cost of jeopardizing coastal state security?
Whether international law envisages conferring jurisdictional powers on the federal units over areas beyond the territorial sea?
Does the law enforcement machinery in the federal units have necessary infrastructure or professional competence to police maritime zones are far as the continguous zone?
When the state police machinery across the country have thoroughly failed secure the national/inland water bodies like rivers, lakes and back waters, can they be expected to perform the law enforcement within the various maritime zones?
Before proceeding to examine these questions we may have to have a brief over view of certain basic concepts like the nature, scope and ambit of coastal security, nature and extent of territorial sea, its evolution and attainment of legal status in the law of the sea arena, nature of rights of the coastal state in the territorial sea, the concept of freedom of navigation etc.
Peculiar nature of coastal security.
Protecting the shore line is a task totally different from protecting the land boundary of a state. Barbed fences have become a common feature along transnational land borders, but are a practical impossibility in the area of coastal security. From time immemorial, human communities living along the coast have relied on the sea not only for fishing but also for communication and transport. Sea based commerce is as old as human civilization itself. Shipping conducted through ports and harbours along the coast line account for nearly eighty percent of the international trade. Drastic measures like shutting off its sea shores to the world at large, if at all practically possible, is not in the interests of the coastal state and no coastal state can afford to do so except at its own peril. At the same time, coastline is an area of enormous security interest to the coastal state since it is a vulnerable frontier through which enemies could infiltrate thus seriously jeopardizing the state’s security. Costal security thus demands reconciling the genuine interest of the state in safeguarding its security with the equally important interest of keeping open its access to the oceans which are gate ways for commerce and economic up liftment.
Coast line and the marginal sea as state territory.
Territory is one of the basic and fundamental concepts in international law. It is the space within which the state exercises its supreme and normally exclusive authority. Concepts like sovereignty, jurisdiction, government, security etc. would be meaningless in the absence of territory. Territory of a state consists of the land within its boundaries as well as waters within and adjacent to its boundaries. These waters of two kinds-national or internal waters and the territorial sea. When a state has a sea board, a certain portion of the sea adjacent to its coast is also subject to its jurisdiction. The extent of this area of the territorial or marginal sea and the legal nature of the state’s right in the said area are two matters which directly concern the norms regarding coastal security.
Origin of the concept of territorial sea
Certain portions of the sea along the states coast are universally considered as prolongation of its territory and the coastal states jurisdiction over such areas is recognized. A state must have control over its approaches to its shores for its shores for its security, over the ships within this area for its economic well being. This belt of the sea adjacent to the coast is known either as ‘marginal belt’ or as ‘territorial waters’ or as ‘territorial sea’ though each of these terms in their strict literal sense have minute formal differences. The concept of territorial sea developed naturally on the basis of the fact that it is adjacent to the coastal state. Baldus a juri consult of 14th century wrote “The Prince is the Lord of his territory and of the sea subject to him. The portion of the sea subject to him is adjacent to the coasts of his territory”. The process of bestowing territorial character on the adjacent belt of the sea was more or less completed by the acceptance of the concept of ‘mare adjacens’ of Barttolus in the 14th century and that of ‘mare portio terrae’ of Gentlis in the 16th century. It was Galiani, the Italian jurist who found the term ‘mare territoriale’ (territorial sea). It may not be out of place to mention here that the concept of territorial sea germinated in however inchoate form in the state practice and legal thinking of ancient India. The ‘Artha sasthra’ of Kautilya provided adequate testimony to this contention. One of the first rules enunciated by Kautilya on maritime jurisdiction reads: “The Superintendent of Ships shall examine the accounts relating to navigation on boats sailing close to the shore (‘Samudra Samanya’). The Artha sasthra also contains few very important ideas relating to the nature of maritime jurisdiction of the coastal state: “(a) A King’s territorial rights extended not only over the land but also over the rivers and seas within his domain (b) These rights involved corresponding obligations also. The obligation of keeping these waters safe fro navigation and putting down piracy (c) Subject to the condition that the ship must note indulge in piratical activities and must pay necessary dues, it was allowed passage through territorial waters of the state.”
So from early times it had been the consistent practice to confer on the littoral state or its monarch some rights over the sea adjacent to the territory of the state. The concept of territorial waters has a valid basis in international law, though disputes existed regarding the nature of the legal status.
Legal status of the waters adjacent to the coast.
By the practice of nations and the theory of self –preservation and protection, every state has the right to evolve norms and put in place a mechanism so as to protect its territory and people from attacks of any kind. A state may exercise certain well defined rights of control within its marginal sea belt. The extension of sovereignty of a state outside the limits of its land territory in to its coastal belt is justified by the security demands of the state, its commercial fiscal and political interest and its interest in exploiting the products of the sea adjacent to its land territory. We are here more concerned about the security interest of the state, which to a great deal depend on the legal status of the territorial waters. The sovereignty exercised by the coastal state over its territorial waters was viewed in various ways by the scholars. Some considered it as an actual ownership (dominion) because it implies in certain cases an exclusive enjoyment very characteristic of ownership, while others treated it as a right of limited sovereignty conferring only a right of jurisdiction on the littoral state. Colombus, the high authority on law of the sea enumerates the rights of the coastal state as five: (1) Jurisdiction over foreign ships (2) police functions, (3) Customs and revenue functions, (4) fishery rights, (5) establishment of defense zones. Even though everybody recognized the fact that the coastal state was more vulnerable if it had no control over the adjacent sea, there was difference among the jurists with respect to the extent of the control to be enjoyed by the coastal state. Should it be conferred sovereign power over that area or should it be reduced to a mere right of jurisdiction? Majority of jurist and general international opinion were in favour of territorial sea subject to sovereignty. But this proposition was not as simple as it appeared to be. The spatial character of territorial sea makes it the subject of simultaneous projection of two sets of competing interests-exclusive interests of the individual coastal states and the inclusive interests of the international community.
Interests of the international community.
One fundamentally and judicially confirmed tenet of international law is that a state cannot exercise its sovereignty in its territory in such a way that amounts to denial of exercise therein of the legally recognized rights of other states. The sovereignty of the coastal state in its territorial sea has to be exercised subject to certain limitations. These limitations are made in the interests of the world community. Approximately fifty thousand ships of oceanic character ply the world’s ocean routes and traverse at one stage or another through the territorial sea of one or more states. Uses of territorial seas of different states is not only unavoidable in international shipping, but is in the interests of the community of states. Otherwise transportation cost would unnecessarily increase along with them the prices of commodities. As pointed out by Hall - ”A nation cannot refuse access to non suspected vessels for innocent purposes without infringing its duty. The interests of the whole world are concerned in the possession of the utmost liberty of navigation for the purposes of trade by the vessels of all states.”
Selden in his mare calusum admitted the principle that a state could not forbid the navigation of its seas by other people without being wanting in its duties to humanity. He thus endeavored to reconcile the British special claim to the sea with the general claims of freedom of navigation.
Freedom of Navigation.
Freedom of navigation is the first among the bouquet of freedoms that together constitute the freedoms of the sea. The concept though primarily concerned the navigation through the high seas, it is also relevant from the point of view of the territorial waters. The concept of freedoms of the sea has a chequered history right from the 17th century onwards i.e., from the time of the Dutch jurist Hugo Grotius, who was its principal champion though not the founder. The principal factor which compelled him to make clarion call for freedom of the seas was the need for free and safe navigation to new markets like India. Grotius argues that the vast expanses of the ocean were incapable of being appropriated and that its resources are in exhaustible. The only exemption to this was the freedom in favour of the coastal state, which is the jurisdiction it exercised over a narrow belt of sea adjacent to its coast. This was done for the protection of the coastal state and in the interests of its security. After passing through various vicissitudes of history the doctrine of freedom of the seas came to be widely accepted. The law of the sea developed around this concept. The principle of sovereignty of the coastal state over its territorial waters developed co –extensively with the concept of freedom of the sea. Even Grotius who fought for freedom of the seas conceded that a belt of the sea adjacent to the coast would be within the sovereignty of the coastal state. Thus territorial sea was a necessity and not a threat to the mare liberum concept.
Effect of UNCLOS III on the concept of freedom of the seas.
Law of the sea has evolved through the decades. UNCLOS III which came into force on 16th November, 1994, was a unique event without parallel in the history of mankind. Never before in the human history has there been an attempt of this scale to formulate and establish comprehensive international law through free negotiation and agreement. Of the many achievements of UNCLOS III, the evolution of Territorial sea with clear fixed limits of 12 nautical miles from the base lines, the concept of innocent passage through the territorial sea and the contiguous zone over which the coastal state may extend the operation of certain of its laws, are of prime importance to our discussion. It is now universally recognized that the territorial sea is an integral part of the territory of the coastal state which has sovereignty over it. Nevertheless, the sovereignty of the territorial sea is unlike that over the internal waters, subject to the enjoyment of certain rights of innocent passage and of transit passage by vessels of all nations. The territorial sea is thus open to merchant men of all nations for innocent navigation except cabotage. It is the common conviction that every state has by customary international law right to demand that in times of peace its merchant men may inoffensively pass through the territorial sea of every other state. This is a corollary of the freedom of the open sea. That the coastal state has exclusive jurisdiction within the territorial sea over matters of police and control is universally recognized. But again the said exercise has to be reconcilable with the rights of navigation and unhampered innocent passage. Foreign vessels have a right of innocent passage in the territorial sea including right to stop and anchor there in so far as this right constitutes an ordinary incident of navigation or is rendered necessary by force majeure or a state of danger. With respect to contiguous zone having an extent of 24 nautical miles from the baseline , UNCLOS III recognizes it as a formal belt for certain limited purposes for the costal state to exercise the control necessary to prevent infringement of customs, fiscal immigration or sanitary regulations. The jurisdiction exercisable in the contiguous zone is confined not only to the four kinds of laws and regulations, but also with a view to their application and enforcement within the territory or territorial sea. After UNCLOS III, freedom of the seas today means in the first place that the sea is open to the common and uninterrupted use of the ships of all nations. The principles of freedom of the seas with respect to the high seas implies specially the following consequences: (1) Freedom of navigation (2) Freedom of fisheries (3) Freedom to lay submarine cables (4) freedom of overflight.
National Legislation relating to maritime zones.
The Territorial Waters, Continental Shelf, Exclusive economic Zone and Other Maritime Zones Act, 1976 is the Indian legislation governing the field of maritime zones which though enacted prior to UNCLOS III similarly reflects the principal norms as laid down in the UNCLOS III. A notable variation of much relevant to coastal state security is that Sec, 5 (4) relating to contiguous zone proved that the central government may exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to (a) security of India and (b) immigration, sanitation, customs and other fiscal matters. Inclusion of Security is an addition to the powers available with in the contiguous zone under the UNCLOS III.
The Territorial Waters Jurisdiction Act, 1878 which was enacted in the UK pursuant to the decision in the Franconia case is retained in the statute book. The objective stated to bring within its ambit all offences committed in the open sea within certain distance of the coasts of the dominion by whomsoever committed to be dealt with according to law.
The Coast Guard Act and the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 contain provisions so as to deal with the offences committed with the territorial sea, contiguous zone and the exclusive economic zone.
General Principles applicable to ports
It would be relevant to examine the very peculiar position under the international law regarding Ports which many a time fall within the internal waters of the state and thus technically is fully with the sovereign powers of the state. The right of sovereignty recognized to a state should not in fact be construed as conferring upon it an unlimited power to prohibit the use of its ports and harbours to foreign nationals. This would imply a neglect of its duties for the promotion of international intercourse, navigation and trade which customary international law imposes upon it. The general principles applicable to ports, harbours and roadsteads are capable of being summarized as follows:
in times of peace commercial ports must be left open to international traffic. The liberty of access to ports granted to foreign vessels implies their right to load and unload their cargoes, embark and disembark their passengers
no port can ever be shut against a foreign ship seeking shelter from tempest or compelled to enter it in distress
purely military ports may be closed to all foreign vessels
entry of ships of war even to commercial ports may be subjected to certain restrictions.
each state has a right to enact laws controlling navigation within national waters.
The entry of foreign merchant ships may thus be reasonably regulated provided no hindrance is put in the way of international trade and no discrimination made between states so as to favour some at the expense of other.
The above general norms of international law relating to ports also need to be borne in mind while making a fresh look at the issue of costal state security, and new norms when evolved may reconcile with the above since as pointed out by Colombus, sea is a way and it is common to the peaceable traders of all nations. There is no man so self sufficient as not to need the continual help of another, so neither is there any country which does not at sometime or another need growth and productions of another.
The UNCLOS III have effectively attempted to reconcile the conflicting interests of the costal state’s security interests in its adjacent waters and the concept of freedom of navigation by evolving the concept of innocent passage. The said provisions in the UNCLOS III have till date succeeded in its said objective. The concept of transit passage with respect to straits used for international navigation also has sufficiently balanced the interests of navigation as well as the genuine apprehensions of the costal state regarding its security. The fact that UNCLOS does not specifically talk about terrorism or about non state actors threatening coastal states security may not stand in the way of the coastal state evolving norms drawing force from its provisions. The norms evolved in UNCLOS III have been purposefully left nebulous so as to cater to future developments. A conjoint reading of the UNCLOS III and the Indian statutes in force reveal that though there is no specific mention of the terms terrorists or non state actors in the provisions, the same are wide enough and empowers the coastal state to enact laws with the objective of safeguarding its coastal security.
In so fat as the Indian law has chosen to extend to the Contiguous zone ‘security’ interests also, thus deviating from the internal law norms on the point, just as within the territorial sea (12 nm), within the Contiguous zone (24 nm) also, the union government is empowered to evolve and enforce norms regarding security. The Indian constitution does not stand in the way of the federal units (States) evolving norms to protect its interest along the coast. The states all along have had the right to evolve laws empowering their police to effectively enforce law and order and protect security within the coast line and marginal sea. That the States had not chosen to invoke those powers is a different matter all together. That the states lack the infrastructural mechanism in the said respect is also a matter of cern which has to be effectively addressed.
There is no dearth of legal norms at present to effectively protect India’s Coastal security. What is lacking is effective implementation and co-ordination between different authorities as also the serious absence of infrastructural facilities. It has also to be noted that infrastructure in the form of technical contrivances, like a string of sophisticated radars along the coast line will serve the purpose. There has to be effective participation of the communities living along the coastline. Their immense practical experience accumulated during generations and their minute knowledge of the locality and the people habiting the same cannot be substituted by any technological devices. Co-ordination of the local communities and channeling the data collected from them can be done effectively by the local coastal state by forming a string of maritime police stations. The said data if passed on to the coast guard and navy in a timely manner will empower them to use their expertise effectively in enforcing coastal security.
There is no requirement at present to create any additional maritime zones like ‘Maritime Security Zone’ or like wise for protecting coastal security. Any such addition will not only be futile and would only add on to the chaos and confusion of a spectrum of maritime zones with varying degrees of jurisdiction and powers. Any further extension of the rights of the coastal states would also detrimentally effect the freedom of navigation which has already eroded over the years. In the present scenario a wider belt is unnecessary for defense in case of threat from non state actors or terrorists as it would add immensely to the obligations and responsibilities of the coastal state. An additional area of territorial sea affords no additional protection especially when we have very scare infrastructure and resources to monitor that area. The states and the police machinery are totally unequipped to deal with the maritime zones and it is best left to specialized bodies like the coast guard and Navy to deal with the same. Allowing the state police machinery to meddle with the vessels plying as wide as the contiguous zone, in the pretext of coastal security will only create chaos and confusion and thereby disrupt the freedom of navigation. Security or defense is not relevant to urge considerations of an extension of the territorial sea. Contiguous zone, within which security is also protected under the 1976 Act, sufficiently protects the interest in costal state security. For safety reasons, but for safety reasons only we do not have to enlarge the marginal belt.
The well being and the future development of all countries are dependent on the unfettered movement of world shipping, which would be achieved only if the territorial sea was kept narrow and costal state intervention powers are kept to the bare minimum as necessary according to the felt necessities of the times. Any further extension of the territorial waters is ipso facto an infringement of the freedom of navigation because the area of the high sea is diminished and that of the former is increased.
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