Marie Valerie Uppiah
Senior Lecturer, University of Mauritius
In 1967, in a powerful and revolutionary speech, Maltese Permanent Representative to the United Nations, His Excellency Arvid Prado, described the seas and the oceans as the common heritage of mankind. In his speech, Mr. Prado, stressed on the importance of protecting that common resource that humanity has shared for centuries.
Being one of the first elements to exist since the creation of this planet, the oceans are the hosts of the world’s most dense and enigmatic biodiversity. Furthermore, for generations, people have used the sea for various purposes. Be it to acquire new land and territories, to fish in order to sustain a living or simply as a vehicle for trade, the oceans and seas have always connected people and countries.
In order to protect this common heritage, on the international, regional as well as national level, several legal steps have been taken in order to promote and protect the seas and oceans as an indispensable resource.
In 1982, the United Nations Convention on the Law of the Sea (UNCLOS) was voted by Member States of the United Nations and the Convention came into force in 1994. The UNCLOS is known as the Constitution for the oceans as it addresses three important aspects for ocean governance.
Firstly, the Convention provides for the extent to which a country can claim ownership over the sea surrounding it. A country can claim ownership over the waters around it up to 350 nautical miles from its shore. Those 350 nautical miles are measured as from the shore up to the continental shelf. After the continental shelf there is the high sea and no country can claim ownership over it.
Secondly, just as for land we have traffic laws, the UNCLOS provides for navigational rights of ships as well as aircrafts at sea. The aim of these navigational rights is to set some rules and standards with regards to sailing, particularly on the high seas. For instance, it is mandatory that ships fly the flag of only one country and not more. The rationale behind that is related to the fact that if a criminal or civil offence happens on board of that ship which is on the high seas, it is the State whose flag is being flown that will have the capacity to hear and try the matter. However, in the event that a ship is on the high seas and is flying two flags, Article 92 (2) of the Convention provides for the following: ‘A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality’. Therefore, if any civil or criminal offence happens on board of the ship that is flying two flags, there will be an ambiguity with regards to which State can try and hear the case.
Finally, the UNCLOS provides for the protection of the marine environment. Along with various other international conventions such as the Convention on Biological Diversity or the Nairobi Convention, the UNCLOS put forward the importance of protecting the marine biodiversity. The UNCLOS places emphasis on the sustainable exploitation and exploration of marine resources and stresses on the conservation and management of living and non-living marine resources.
Today, the seas and oceans are being celebrated for various purposes. They are a source of life, income, leisure and knowledge. The international community at large, ranging from governments to non-governmental organisations, have recognised the importance of sustainably managing the seas and oceans. From a legal perspective, the fact that there is a Constitution for the oceans, is a remarkable step towards protecting this common heritage in order to avoid a ‘tragedy of the commons’.
References:
http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
https://www.law.upenn.edu/journals/jil/jilp/articles/1-1_Shaughnessy_Tina.pdf